NEWMARKET COURT FILE NO.: FC-13-043020
CORRECTED DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SALVATORE DI BRATTO
Applicant
– and –
SANDY SEBASTIAO
Respondent
Isaura Medeiros, for the Applicant
Respondent Unrepresented
HEARD: November 19, 20, 21, 24, 25, 26 and 27, 2014
Corrected decision: The text of the original judgment was corrected on April 7, 2015 and the description of the correction is appended
McDermot J.
Introduction and Litigation History
1Successfully raising a child is difficult under normal circumstances. Separation increases those problems and a hard separation, where parties are unable to communicate and are intensely suspicious of each other creates a perfect storm of instability and toxicity for a child. That is, unfortunately, the case for Pierce Sebastiao Di Bratto, the child who is in issue in these proceedings.
2Pierce is, by all accounts, a delightful child who will be three next month. And fortunately for him, he is blissfully unaware of the numerous disagreements, some extremely unpleasant, that the applicant and the respondent have had since they separated in April, 2013. He is not aware of the numerous times that the parties have involved law enforcement authorities or child protection agencies over non-existent concerns or which the parties should have been able to resolve between themselves. More importantly, Pierce is young enough that court intervention may, perhaps, rescue him from parental toxicity without lasting damage. That, however, may be a faint hope, as both the applicant and the respondent will always remain important to Pierce and there is little expectation that these parents will be able to resolve any of their numerous and serious communications issues in the foreseeable future.
3These proceedings have largely reflected the problematic relationship between Mr. Di Bratto and Ms. Sebastiao. The litigation has been acrimonious and court intervention has been necessary on a number of occasions. When the parties separated in early 2013, Pierce remained with the respondent, Ms. Sebastiao. Almost immediately after separation, the applicant, Mr. Di Bratto, retained counsel. Ms. Medeiros on behalf of Mr. Di Bratto issued the application in record time, about two weeks after separation because, according to Mr. Di Bratto, there was no ability to communicate with the respondent Mother about access or other matters concerning Pierce, who was just under 12 months old at that time. Since then, the applicant has brought three motions as well as two 14B procedural motions; Mr. Di Bratto says that these motions were necessary to either address Ms. Sebastiao’s numerous refusals to negotiate access or other issues in good faith or to address breaches of various court orders by Ms. Sebastiao. And the courts were not the only agencies involved; Ms. Sebastiao called the York Region Children’s Aid Society because she alleged that Mr. Di Bratto was neglectful of Pierce; these allegations expanded to statements that Mr. Di Bratto was endangering Pierce through alcohol and drug use, as well as illegal gun possession. Mr. Di Bratto has called the police on a number of occasions, usually in fruitless attempts to enforce the access ordered by the court. Ms. Sebastiao has also called the police on two other occasions, one of which involved an “emergency” when she discovered that Pierce had a temperature while in his father’s care. Mr. Di Bratto, on one occasion, hired a private investigator to confirm that Ms. Sebastiao was lying about a wedding that she said that she was invited to for which Mr. Di Bratto gave up access that weekend.
4All of this has combined to produce an extremely high conflict case. The parties are unable to communicate on any level; they could not even communicate about how to communicate with one another and required judicial assistance on that point. They have been unable to agree on any issues concerning the child; it appears that Ms. Sebastiao has generally made decisions about the child and Mr. Di Bratto has reluctantly gone along with those decisions. The parties were unable to agree on a day care; indeed, they also could not agree on the child’s diet or on medical treatment for minor ailments from time to time. They could not agree on having the child baptized; because of this, the church has withdrawn its support for a baptism until both parents are onside. All of this is magnified by both parents’ tendency to be hyper-vigilant about health issues concerning the child.
5There have been numerous court orders and I need to provide a summary of these court orders, if only to give an understanding of how difficult it has been for these parties to date:
a. On April 11, 2013, the parties attended at a case conference with Nelson J. At that time, the parties requested involvement of the Office of the Children’s Lawyer.1 On consent, Mr. Di Bratto was given access to the child, then in Ms. Sebastiao’s care, on Mondays, Wednesdays and Fridays from 5:30 p.m. to 9:00 p.m. as well as alternate Saturdays from 11:00 a.m. to 7:00 p.m. The parties also agreed that if a visit was to be cancelled or changed, they would give 48 hours’ notice “and alternate access shall be arranged.” A motion date was set.
b. On June 5, 2013, after argument of a motion before Kaufman J., Mr. Di Bratto was given temporary access Mondays from 3:30 p.m. to 7:30 p.m., Wednesdays from 3:30 p.m. to Thursdays at 7:30 a.m., alternating Fridays from 3:30 p.m. to Saturday at 12:00 p.m. and alternating Saturdays (during the following week) from 3:30 p.m. to Sunday at 12:00 p.m. Kaufman J. further ordered that when Pierce turned two, the weekend access would be alternating weekends from Friday at 3:30 p.m. to Sunday at 7:00 p.m. to be extended to the Monday of a long weekend. Pickups and drop-offs were to be at the day care where possible. There were a number of other provisions, including provisions permitting the paternal grandparents to assist in access pickups and drop-offs as well as a requirement to maintain a communications book. Importantly, the order required the parties to consult with one another respecting major decisions and there was a police enforcement clause. Ms. Sebastiao was ordered to pay $2,100 in costs payable at $700 per month.
c. On September 16, 2013, at a further case conference, Ferguson J. made an order for specified access. She further ordered the respondent to provide specified financial disclosure within a week. A further motion date was set for October, 2013 to deal with Christmas access and a psychological assessment. Costs were reserved.
d. On October 16, 2013, after an argued motion before Nelson J., Howard Hurwitz was appointed to conduct an assessment under s. 30 of the Children’s Law Reform Act2 (the “CLRA”). Mr. Di Bratto was to pay the costs of the custody assessment subject to his right to seek reimbursement of one half of those costs from Ms. Sebastiao. Christmas access was ordered for December 25 at 12:00 to December 26 at 12:00 p.m. Nelson J. also ordered that neither party withdraw Pierce from his daycare at ElginView Montessori School without the written consent of the other, such consent not to be unreasonably withheld; Ms. Sebastiao was also again ordered to provide proof of income from any source, and to advise as to all of her specific details of her search for employment. Costs of $750 were ordered against Ms. Sebastiao.
e. By the time of the settlement conference held on April 29, 2014, the assessment had been received and Bale J. ordered the parties to exchange responses to the assessment to each other. Leave was given to bring a motion.
f. On July 23, 2014, a motion was argued before Kaufman J. who made a lengthy and comprehensive order. Regarding Ms. Sebastiao’s motion, Kaufman J. ordered that no more than one person be present at access visits, that the journal continue and be available at trial and that notice be given of any family celebration to the father immediately if it interferes with access. Kaufman J. ordered that income could not be imputed until trial, but that the mother could move by 14B, if necessary for a “support deduction order”.3 Regarding the father’s motion, Kaufman J. ordered makeup time on July 25, 2014 to address access which was withheld on an earlier weekend. Copies of the OHIP card were to be provided and Ms. Sebastiao was ordered to advise Mr. Di Bratto if and why Pierce was not attending daycare. Ms. Sebastiao was ordered to make the child available for his baptism and a date was set for the baptism.4 Again, the respondent’s financial disclosure was in issue; Ms. Sebastiao was ordered to provide a financial statement with supporting documentation on or before September 30, 2014. Costs were ordered against Ms. Sebastiao in the amount of $2,000, payable within 30 days of Ms. Sebastiao obtaining employment, or December 1, 2014.
g. On October 24, 2014, a trial management conference was held before McGee J. Apart from the directions for filing of material at trial, Ms. Sebastiao was ordered to provide her financial statement and her supporting documentation as previously ordered by Kaufman J. on or before November 7. 2014. She was also ordered to remove an affidavit which she had filed from the continuing record.
h. On November 17, 2014, Ms. Sebastiao brought a motion before Rogers J. to adjourn the trial. Ms. Sebastiao claimed that she had retained counsel and said that she required time to prepare for the trial. Ms. Sebastiao’s motion was dismissed. Costs of $1,500 were awarded against Ms. Sebastiao payable if the father has at least 50% success at trial.
6As noted above, the parties attempted to obtain the assistance of the Office of the Children’s Lawyer, but the request was refused. Pursuant to the order of Nelson J. made on October 16, 2013, an assessment was ordered pursuant to s. 30 of the CLRA. As Mr. Hurwitz was not a psychologist and as no psychological testing was done, effectively this was closer to an investigation of issues surrounding custody and access normally conducted by the Children's Lawyer than a psychological assessment as contemplated by s. 30. That assessment, completed in April, 2014, recommended joint custody with a parallel parenting regime, leaving the child in the care of the respondent mother, but with increasing time with the applicant until custody became fully shared when Pierce turned four.
7The trial of this matter took place over seven days during the November, 2014 sittings in Newmarket. Ms. Sebastiao did not have counsel at trial. When the trial opened, it was apparent that the respondent had not removed the affidavit from the continuing record and I was told that the respondent had failed to provide her financial statement or supporting documentation as directed at the trial management conference.5 I directed the affidavit to be removed; it was eventually filed as an exhibit for identification purposes, but only one of the attachments (they were not formal exhibits to the affidavit) was formally identified by the respondent as a trial exhibit. Over the objections of applicant’s counsel, I permitted the respondent to file her income tax returns and several other financial documents as exhibits at the trial; they were only provided to counsel on Tuesday November 25, 2014. No updated financial statement was provided by the respondent during the trial although the financial statement sworn by the respondent on October 20, 2014 was made an exhibit during Ms. Sebastiao’s cross examination.
8The witnesses at trial included the parties, the assessor, the C.A.S. worker and members of the applicant’s family as well as several friends of the respondent. As well, the respondent’s ex-husband also testified as a witness for Mr. Di Bratto.
9For the reasons set out below, there will be a final order as follows:
a. The applicant shall have custody and primary residence of the child subject to the terms set out below;
b. The respondent shall share time with the child three weekends out of four, as well as one overnight midweek visit on Wednesdays;
c. The parties shall share holiday time and special occasions as set out below.
d. The respondent owes the applicant retroactive child support (section 7 expenses) in the amount of $1,232.
e. The respondent shall pay the applicant base child support of $546 per month plus a proportionate share of daycare costs of $233 per month commencing April 1, 2015. This is based upon my finding that the respondent and the applicant each have annual income of $60,000.
Background Facts
10Mr. Di Bratto is a plumber and he was introduced to Ms. Sebastiao through a neighbour because Ms. Sebastiao needed some work done on her home. Ms. Sebastiao says that the parties moved in together fairly soon after meeting, in June of 2009. Mr. Di Bratto denies this to be the case; he says that the parties dated for a number of years, but he did not move into Ms. Sebastiao’s home until March of 2012, barely a month prior to Pierce’s birth.6 Very little evidence was given by either party to justify their respective conclusions as to when cohabitation began and, as neither party is making property claims and Ms. Sebastiao did not claim support for Pierce’s step-siblings (one of whom is no longer living with her), the length of cohabitation is not particularly important in determining a result in these proceedings.
11If the parties did move in together in June, 2009, however, it was fairly soon after Ms. Sebastiao separated from her husband, Danny Corriea, who testified at the trial. Mr. Corriea said that he had separated from Ms. Sebastiao on December 8, 2008, when he left the matrimonial home (in which Ms. Sebastiao continues to live) after a 12 to 14 year marriage. Ms. Sebastiao and Mr. Corriea had two children, Kiiara and Blake Corriea, who were, in December, 2008, 4 and 9 years of age respectively. Those children continued to live with Ms. Sebastiao after her separation from Mr. Corriea.
12The breakup between Ms. Sebastiao and Mr. Corriea was, by all accounts, difficult and acrimonious. The separation occurred as a result of a physical altercation and Mr. Corriea was charged and convicted of assault and was given a conditional discharge. A restraining order was issued in family court and Mr. Corriea initially had supervised access to his children. Because he could not afford the access supervision, Mr. Corriea says that he was without access to his children for about six months; he blames Ms. Sebastiao for this because of her failure to agree to a member of his family as an access supervisor. This was difficult litigation; a measure of this was the $20,000 trial retainer requested at one point in time by Ms. Sebastiao’s solicitor. Ms. Sebastiao’s trial retainer, along with several other legal accounts, was paid by Mr. Di Bratto. The parties eventually settled their issues through Minutes of Settlement made October 25, 2012 which gave Ms. Sebastiao custody of the children and specified access to Mr. Corriea.
13Although this order has never been changed, Kiiara, who is now 15, moved in with Mr. Corriea on March 28, 2014 as a result of another physical altercation, this time between Ms. Sebastiao and Kiiara. Blake continues to live with Ms. Sebastiao in the former matrimonial home. Although Mr. Corriea continues to see Blake, since moving in with her father Kiiara has elected not to see her mother.
14Mr. Di Bratto dropped into the middle of this breakup in early 2009. As noted, Ms. Sebastiao says that Mr. Di Bratto moved into her home in June, 2009. She says that notwithstanding the fact that Mr. Di Bratto was living there, he refused to pay household expenses and paid for little or nothing throughout while living there rent free. Mr. Di Bratto says that although he did not move in with Ms. Sebastiao until much later, he did offer to help with the household bills. Ms. Sebastiao refused, according to him, because she did not wish him to have a claim against the home. He says that he did work around the home and did pay for groceries. As noted, he also paid the $20,000 trial retainer requested by Ms. Sebastiao’s lawyer; notwithstanding the fact that a portion of that retainer was returned to Ms. Sebastiao after her matter with Mr. Corriea was settled, Mr. Di Bratto has not seen any part of that refund.7
15Mr. Di Bratto testified that when he discovered that Ms. Sebastiao was pregnant, it was the “happiest day of his life.” From the beginning, he was an enthusiastic parent. He was involved in Ms. Sebastiao’s pre-natal classes and care. He was present at the birth of Pierce on April 30, 2012 and arranged for his parents and sister to come to see Pierce at the hospital. He stayed home from work for a month after Pierce’s birth and says that he worked reduced hours for much of the following year.
16The relationship broke down, however, less than a year after Pierce’s birth, in March, 2013. Mr. Di Bratto testified that he had difficulties in blending in with Ms. Sebastiao’s family; he was not permitted to discipline her children who he says were defiant and belligerent with him. However, the major issue leading to the separation appears to have been money. Ms. Sebastiao says that Mr. Di Bratto refused to contribute to the expenses of the home and she became increasingly frustrated with him; Mr. Di Bratto says that when he was asked to contribute to the mortgage, he then asked Ms. Sebastiao to put him onto the title to the home which she refused. Mr. Di Bratto left Ms. Sebastiao’s home on March 8, 2013 and moved back in with his parents, where he remains to this date. Pierce, who was then under one year of age, remained in the care of Ms. Sebastiao.
17Mr. Di Bratto says that he then gave Ms. Sebastiao a proposal regarding his time sharing of Pierce, which was rejected out of hand. Mr. Di Bratto, who had observed Danny Corriea’s difficulties in arranging access to his children, was naturally enough extremely concerned; he immediately retained counsel who issued on Mr. Di Bratto’s behalf this application for custody of Pierce in Newmarket family court.
18The period of time between the date of the parties’ separation and trial was short; however, there have been numerous incidents during that brief amount of time which indicate that these parties are completely unable to agree on the most minor issue and are, indeed, incapable of any rational communication whatsoever between one another. A sampling of these incidents summarized from the evidence of both parties and the assessor is as follows:
a. Mr. Di Bratto testified that, after the parties separated, he attempted to suggest an access schedule directly with the respondent and later through his counsel, Ms. Medeiros. According to Mr. Di Bratto, Ms. Medeiros suggested access on March 25 and 29, 2013 and both of those dates were rejected by Ms. Sebastiao. At that time, the parties were discussing day care for Pierce and Ms. Sebastiao had told Mr. Di Bratto to check on the ElginView Montessori School in Toronto. When Mr. Di Bratto went to the school on one of the suggested access dates, March 25, 2013, he found Pierce already attending the day care centre. He stated that he was surprised to find Pierce there because he perceived that the parties were still discussing which day care to enroll Pierce in. He had also been refused access on that date and then found that Pierce was in daycare.
b. Daycare has always been an issue between these parties. When the issue came up soon after separation, Mr. Di Bratto had suggested several day cares to Ms. Sebastiao; in testimony he said that he liked the Mini-Skool Day Care Centre near to his home and seven minutes from the residence of Ms. Sebastiao. Ms. Sebastiao told Mr. Di Bratto to visit the ElginView Montessori School and that she would be starting Pierce at daycare on April 2, 2013; as noted above, Mr. Di Bratto found Pierce enrolled at ElginView prior to that date. Ms. Sebastiao says that Pierce was only there early on an orientation date; it is apparent however that Ms. Sebastiao chose the day care arbitrarily without input from Mr. Di Bratto. She gave no explanation as to whether she considered the Mini-Skool as a daycare for Pierce or as to why she rejected Mr. Di Bratto’s suggestion.
c. At the case conference on April 11, 2013, Mr. Di Bratto was given Sunday access on consent commencing April 21, 2013. He says that he advised Ms. Sebastiao that he wished to have Pierce with him on April 21, 2013 in order to attend his niece’s first communion. Ms. Sebastiao advised Mr. Di Bratto that she wished Pierce with her that day because she had a wedding to attend in London, Ontario. Mr. Di Bratto acceded to that request; this was reflected in paragraph 6 of the April 11 consent order. However, Mr. Di Bratto hired a private investigator because he “had a feeling” that Ms. Sebastiao was lying to him. That private investigator followed Ms. Sebastiao on the Saturday, Sunday and Monday of that weekend and discovered that Ms. Sebastiao did not, in fact, go to London on April 21. Instead she went shopping with Pierce and her other children. On the same date, Ms. Sebastiao texted Mr. Di Bratto on several occasions to tell him that the wedding was going well. Ms. Sebastiao denies any attempt to deceive; she said that when she noticed that she was being followed by a private investigator, she decided that she would not “endanger” her children and decided not to attend the wedding. In cross-examination, she refused to provide the name of the person who was being married or the name of the church in London where the wedding was to take place.
d. A review of the texting chain from April 20 and 21, 2013 makes it apparent that the relationship between the parties was quickly becoming toxic. The parties criticized each other for failures to change Pierce’s diaper properly, for failing to drive safely with Pierce in the vehicle and for failing to bathe Pierce properly. Mr. Di Bratto pointed out that Ms. Sebastiao had told the day care not to release information to him and Ms. Sebastiao agreed that this was the case and that he could get the information from her. This issue was eventually addressed before Kaufman J. on June 5, 2013 and Mr. Di Bratto was given the right to obtain information from the day care directly.8 I note that Mr. Di Bratto also complained about not being made an emergency contact for the day care centre, although the form from the day care stated that the emergency contacts was to be someone other than a “parent.” 9
e. Ms. Sebastiao next raised a concern about the fact that Mr. Di Bratto’s parents were driving Mr. Di Bratto (and Pierce) to and from access visits. She says that she originally raised the issue in March, 2013, soon after separation and had always been concerned about it. On May 8, 2013, Ms. Sebastiao emailed Ms. Medeiros, stating that Mr. Di Bratto’s father was driving his son for pickups and deliveries and that his driving “was aggressively fast and not safe for my child as a passenger.” Ms. Sebastiao apparently refused access on May 10, 2013 because of this and the police were called. She eventually agreed to meet Mr. Di Bratto just past 6:00 p.m. at a Go Train station; as with many other issues, the matter of access transportation had to be addressed by a court order when Kaufman J. ordered on June 5, 2013 that the paternal grandparents could “assist” in access transportation so long as the appropriate car seat was available. Notwithstanding this order, Ms. Sebastiao continued to raise concerns about the paternal grandparents providing transportation both with the York Region C.A.S. and at trial.
f. On May 20, 2013, Victoria Day, Ms. Sebastiao was not present at her home for the access pickup; because it was a holiday Monday, the child was not in daycare where the pickup normally took place. Mr. Di Bratto says that he could not contact Ms. Sebastiao or locate her whereabouts. The York Regional Police were called the next day, and they spoke with Ms. Sebastiao; they indicate in their report that Ms. Sebastiao had given 48 hours’ notice of the cancellation of the access visit and she had offered two other dates, neither of which was satisfactory to Mr. Di Bratto. The police indicated that, in their view, there was no breach of the order.10
g. In July, 2013, Ms. Sebastiao contacted the York Region Children’s Aid Society, complaining that Mr. Di Bratto was neglectful of Pierce and that he used an improper car seat. She further claimed that Pierce was returned from access without his diaper being changed. She later expanded these complaints and said that Mr. Di Bratto was using drugs and alcohol and had an illegal weapon in the home. Mr. Di Bratto completed drug screening tests and the results were negative. Both Kiiara and Blake confirmed to the worker that they had never observed Mr. Di Bratto consuming drugs. None of Ms. Sebastiao’s complaints against Mr. Di Bratto were verified, but the file remained open for several reasons. Firstly, adult conflict between Mr. Di Bratto and Ms. Sebastiao was verified and deemed to be harmful to the child. As well, it was eventually determined that Ms. Sebastiao had inappropriately disciplined her two older children, Kiiara and Blake, including pulling their hair. Perhaps because of this, Kiiara eventually moved in with her father as noted above. The C.A.S. worker who testified at trial, Rexon Ray, confirmed that he visited Mr. Di Bratto every two weeks and did not find any problem with Mr. Di Bratto’s care of the child or with Mr. Di Bratto’s home at his parent’s residence. The fact that the investigation was focused on Ms. Sebastiao and her older children was confirmed by the fact that Mr. Ray was eventually replaced with a worker who was female and with whom Kiiara felt more comfortable.
h. In September, 2013, Ms. Sebastiao asked Mr. Di Bratto to permit her to pick Pierce up early after an access visit because she had to get Blake to language lessons. She requested that she be permitted to pick up Pierce one hour early, at 11:30 instead of 12:30 p.m. Mr. Di Bratto refused, and Ms. Sebastiao showed up with the police. Mr. Di Bratto eventually agreed to release Pierce at 12:00 p.m.; it took the involvement of the York Regional Police to force the parties to compromise on a comparatively minor issue.
i. On September 16, 2013, the parties appeared before Ferguson J. at a case conference and agreed to holiday access, including access on Thanksgiving Day, October 13, 2013; the endorsement indicates that “for T.G. [Thanksgiving] Father to return Pierce by Sunday at 7:30 p.m. + forego Monday.” Mr. Di Bratto testified that he understood that the parties had agreed that he would have the entire day from 9:00 a.m. and the failure to recite that in the order was an oversight. He says that he showed up at 9:00 a.m. at Ms. Sebastiao’s residence but access was refused. He went to the police, and they went with Mr. Di Bratto to Ms. Sebastiao’s home; because the order did not state that pickup was at 9:00, the police refused to intervene. Ms. Sebastiao stated that the pickup was to be 3:30 p.m. and Mr. Di Bratto was forced to return at that time to get Thanksgiving access. In his testimony, the assessor, Howard Hurwitz, characterized the respondent’s behaviour during this incident as “unreasonable.”
j. On October 21, 2013, the police were called because Mr. Di Bratto arrived to drop Pierce off at the respondent’s residence but found a “stranger” there and he did not want to drop Pierce off with a stranger. That “stranger” was, in fact, a friend of Ms. Sebastiao’s, Isabella DePaola, who testified that she had previously met Mr. Di Bratto on several occasions. Apparently, Mr. Di Bratto did not recognize Ms. DePaola and notwithstanding her entreaties, he called the police. Pierce was forced to wait in a police car for an hour and a half until Ms. Sebastiao’s return home that evening.
k. By the time Christmas 2013 rolled around, the assessment with Howard Hurwitz was underway. He assisted the parties in agreeing to some extra Christmas time for Mr. Di Bratto on December 23, 2013. According to Mr. Di Bratto, Mr. Hurwitz confirmed that the visit would be for the entire day, beginning between 7:30 and 8:00 a.m. with Pierce being dropped off at 7:30 p.m.11 A serious ice storm occurred in Toronto on December 22, 2013, and Mr. Di Bratto texted Ms. Sebastiao and offered that she could come to his place with her family because her power was out and Mr. Di Bratto’s power was still on. Ms. Sebastiao refused that offer. On December 23, 2014, Mr. Di Bratto texted Ms. Sebastiao to ask where he could pick up Pierce, but Ms. Sebastiao stated that access could not take place on that day because of “unforeseen circumstances.” She said that because of the “driving conditions” she would not risk her “family’s safety.”12 She offered December 27 instead. Mr. Di Bratto refused because the parties could not agree on pickup and drop off times that day and demanded access on the 23rd. Ms. Sebastiao did not provide a pick up location and apparently access did not take place on the 23rd but did occur on December 27th (at least according to the text messages between the parties).
l. Both parties are Roman Catholic and in February, 2014, Mr. Di Bratto approached the deacon of his church regarding Pierce’s baptism. The parties could not agree on baptising Pierce and Ms. Sebastiao objected to it even though her other two children had been previously baptized. She also would not agree to a public ceremony; she wished it to be private without Mr. Di Bratto’s family present. On July 23, 2014, Mr. Di Bratto brought a cross-motion before Kaufman J., who ordered, amongst other issues, that the baptism take place on September 20, 2014 and that all family members could be present. Notwithstanding this order, the baptism never took place. The major reason was that Ms. Sebastiao said that the godmother that she chose could not be present on September 20, 2014. The parties could then not agree on an alternate date. The church became fed up and advised the parties that, notwithstanding the court order, if the parties could not agree on the baptism, the church would not perform it. Mr. Hurwitz clearly felt that Ms. Sebastiao was intent upon frustrating Pierce’s baptism; he suggested a parallel parenting regime with Mr. Di Bratto having control over religious issues and in cross-examination, Mr. Hurwitz testified that Ms. Sebastiao had given no valid reason why the baptism should not occur and unless Mr. Di Bratto was given control over this issue, the baptism would never take place.
m. On June 5, 2013, Kaufman J. ordered that the parties consult with one another on all major issues including “daycare.” On October 16, 2013, Nelson J. ordered that neither party remove Pierce from ElginView Montessori School without the consent of the other or a court order. The reason for this latter provision, according to Mr. Di Bratto, was because he was paying the entire cost of day care after September, 2013 as Ms. Sebastiao became unemployed. In June, 2014, Ms. Sebastiao and Mr. Di Bratto were advised that ElginView Montessori School was moving to a new location. Mr. Di Bratto discovered that Ms. Sebastiao had registered Pierce at Steel Kids Child Care in Richmond Hill. Although Ms. Sebastiao insisted during cross examination that ElginView was closing, this does not appear to have been the case and it appears that the order of Nelson J. was breached by Ms. Sebastiao when she placed Pierce in Steel Kids without Mr. Di Bratto’s consent.
n. When Mr. Di Bratto went to pick up Pierce at the daycare for his scheduled weekend access on June 27, 2014, he was advised that Pierce was not at the daycare centre that day. She could not be reached at any of the contact numbers that Mr. Di Bratto had. As provided for in the order of Kaufman J., Mr. Di Bratto sought out police assistance. Ms. Sebastiao could not be located and Mr. Di Bratto did not receive his weekend access. Apparently, Mr. Di Bratto had to return to court to obtain make up access; Kaufman J. ordered that he have Pierce on the weekend of July 25, 2014 as compensation “for the lost weekend of June 27th, when the child was withheld.”13
o. August 4, 2014 was a Monday and Mr. Di Bratto’s access day. On that day, Ms. Sebastiao’s grandfather, who had largely raised her as a teenager, passed away. Mr. Di Bratto agreed to give up access that day. He also did not receive access on August 8, 2014 which was the day of the funeral. His time to pick Pierce up was 3:30 p.m. and the funeral was at 9:30 a.m. Ms. Sebastiao refused access that day; she felt that Mr. Di Bratto was unreasonable in requesting any access that day while Mr. Di Bratto felt that Ms. Sebastiao was unreasonable in withholding access. When cross examined on that issue by Ms. Sebastiao, Mr. Hurwitz took Mr. Di Bratto’s side, stating that for such a young child, it was not unreasonable for Mr. Di Bratto to have access later on on the day of Ms. Sebastiao’s grandfather’s funeral. The parties were never able to negotiate make up access.
p. Mr. Di Bratto showed up at Ms. Sebastiao’s home on 3:30 p.m. for his Monday access on September 1, 2014. That was the Monday of the Labour Day long weekend. Ms. Sebastiao was not there. The police were involved without success. According to Mr. Di Bratto, Ms. Sebastiao refused to provide make up time, stating that he was mistaken in his interpretation of the order.14
q. This incident was repeated during the Thanksgiving, 2014 long weekend, when Mr. Di Bratto showed up with the police on Monday, October 13, 2014. Again, Ms. Sebastiao was not there for the Monday access and again make up time was refused.
r. There have been numerous issues of medical anxiety, largely on the part of the respondent. There were numerous incidents where medical appointments were made for health issues which were confirmed to have been unnecessary. Of greater concern is the fact that the medical records indicate that, on numerous occasions immediately after an access visit with Mr. Di Bratto, Ms. Sebastiao would then pack Pierce off to the doctor or the walk in clinic. There have been some 22 visits for Pierce to the doctor during the last year, most of which took place after access visits. Again, Mr. Hurwitz, in his testimony, described this behaviour as unreasonable, and speculated as to whether Ms. Sebastiao had mental health issues resulting in numerous visits to the doctor for no real reason whatsoever.15
s. Connected with this is an incident that occurred on November 1, 2014, during an weekend access visit with Mr. Di Bratto. That day, he took Pierce to the doctor because Pierce had a slight temperature; the doctor told Mr. Di Bratto that Pierce had the flu and prescribed cough medication to ensure that the cough did not worsen. Mr. Di Bratto texted Ms. Sebastiao to advise her of Pierce’s illness. The reply texts from Ms. Sebastiao became increasingly shrill, until she finally called the police that evening. The police attended at Mr. Di Bratto’s residence and told him that they had been told that there was an “emergency” requiring their attention. They left when they found Mr. Di Bratto watching television with Pierce, who was comfortable and happy. Upon Ms. Sebastiao regaining care of Pierce the next day, she immediately went to the doctor to have the prescription of the earlier day countermanded; unaccountably, she testified that Mr. Di Bratto should have second-guessed the doctor who prescribed the cough medication and that he should not have given it to Pierce. In testimony, Mr. Hurwitz described the respondent’s behaviour during this incident as “alarming”.
t. The parties have not even been able to agree on a method of communication between them. Mr. Di Bratto has always insisted upon communication books travelling back and forth with the child, while Ms. Sebastiao is a proponent for the Our Family Wizard program which allows communication through a computer program which also allows for scheduling of events and dealing with conflicts. She testified that she used this program to communicate with Danny Corriea although Mr. Corriea did not feel as sanguine about the use of the program. It is apparent that communication by telephone does not work between the applicant and the respondent; both parties complain that the other refuses or fails to answer the phone when he or she calls the other. It is also apparent that the texting program that the parties have used, the WhatsApp application, also is not working, bearing in mind the numerous disagreements expressed by the parties over the smallest possible issue as shown by the texts made an exhibit at trial. Now, when Mr. Di Bratto inserts a comment in the communications book, Ms. Sebastiao creates a response on the Our Family Wizard program, prints it out and inserts it into the communications book. In his assessment, Mr. Hurwitz described Mr. Di Bratto’s refusal to use the Our Family Wizard Program as unreasonable.
19Although many of these incidents appear to be minor in nature, that is not the case for these parties. The incidents also make it apparent to me that the parties have been unable to communicate or co-parent in any meaningful fashion between themselves. Largely because of these conflicts, what was originally a request for joint custody and equal time sharing by Mr. Di Bratto has now evolved into a claim for full custody.
20Mr. Di Bratto is self-employed and works as a plumber. He made extensive income disclosure which comprised three full exhibit books at trial. His gross business income in the last three years ranged between $57,216 in 2012 to $117,055 in 2013; Ms. Sebastiao suggests that, taking into account cash income, his income be set at an amount closer to the latter amount for support purposes. He has been voluntarily paying support based, not upon his taxable income, which is extremely low, but based upon a certain amount of imputed income. His counsel suggests that income in the range of $53,000 per annum be used for support purposes.
21Ms. Sebastiao described herself as a “support systems specialist.” Up to 2012, when she took maternity leave, her income appears to have been in the range of about $80,000 per year. She largely worked on a contract basis for financial institutions but she most recently worked in 2013 for six months with the Regional Municipality of York. She made $45,000 from that employment, but has been unemployed since September, 2013. She was receiving employment insurance benefits for a time, but that has run out. She says that she subsists on the support paid by her by Mr. Di Bratto and Mr. Corriea as well as gifts and loans from family members. She claims to have no income whatsoever.
22Although Mr. Di Bratto made extensive financial disclosure for trial, Ms. Sebastiao did exactly the opposite. She had been ordered to serve and file a financial statement as well as her full income tax returns prior to trial; although she had served and filed a financial statement on October 20, 2014, that financial statement had no attachments and did not include income tax returns or notices of assessment as provided by the Family Law Rules.16 She finally provided the income tax returns late in the day on November 25, 2014, several days prior to the trial completing and during her own cross examination. Ms. Sebastiao’s financial statement sworn October 20, 2014 was only filed as an exhibit during her cross-examination.
23Both parties seek imputation of income. Both parties state that the other is capable of earning more income, or is hiding income.
Evidence at Trial
24There were a number of trial witnesses. Most of the witnesses were called by the applicant; however Mr. Hurwitz was a court appointed witness and both parties were given the opportunity to cross-examine this witness. I intend upon examining in some detail the evidence from the parties, as well as that from Mr. Hurwitz who testified regarding his assessment. In doing so, I need to comment on the credibility of the parties as there are numerous differences in their testimony. I will also comment specifically on evidence from the C.A.S. worker, Rexon Ray, Ms. Sebastiao’s ex-husband Danny Corriea, as well as collateral evidentiary sources including Ms. Sebastiao’s friends, and Mr. Di Bratto’s mother and sister.
Evidence of Mr. Di Bratto
25Mr. Di Bratto was the first witness to testify at trial. He spent much of his testimony describing incidents where he had been wrongfully deprived of access with Pierce as well as what he saw as his parental rights a result of Ms. Sebastiao’s actions. He testified as to Ms. Sebastiao withholding information about the child or excluding him from decisions concerning the child. In fact, most of the evidence that he provided regarding Pierce concerned the conflict that he had had with Ms. Sebastiao over Pierce and Pierce’s upbringing. At one point, Mr. Di Bratto complained to the police that he had lost faith in the system. His experience is similar to that of many non-custodial parents in attempting to enforce access rights and involvement in the child’s life in the face of an uncooperative custodial parent and, in view of the history, there is little wonder that he eventually ended up having little faith in the ability of the courts or the authorities in enforcing those rights.
26He also testified extensively about his income as a plumber. He made extensive financial disclosure through three large exhibit books; during trial he carefully outlined and identified the various documents contained in those exhibit books to prove his income. He was clear in acknowledging that his income not be set at the Line150 amounts set out in his income tax returns (which ranged between $7,483 in 2012 and $30,955 in 2013) but at a realistic amount based upon elimination of deductions pursuant to s. 19(1)(g) of the Child Support Guidelines17 as well as a gross-up for income tax purposes.
27Mr. Di Bratto gave me the impression of being an earnest man, who genuinely loves his son and is interested in his welfare. He testified about his routine during access visits and about the home environment that Pierce enjoys at his parents’ residence, which he shares with them. He emphasized that he, and not his mother or father, cares for Pierce during access visits.
28At times, it was apparent that Mr. Di Bratto appeared to be overly involved in his son’s welfare. He wished to be involved in routine medical appointments and Pierce’s daycare. He would drop in at the day care to have lunch with Pierce; although there is nothing wrong with being involved a child’s daycare, the daycare center, is, in my view, is a place where the child should be free of parental disputes and Mr. Di Bratto’s attendance at day care for meals and lunches appeared to me as being overly intrusive and not necessarily in Pierce’s best interests.18
29It was also apparent that Mr. Di Bratto’s hyper-vigilance regarding Pierce would grate on Ms. Sebastiao who gave me the impression of someone who just wanted to be left alone to parent her child. And in the dynamic between the parties, Mr. Di Bratto’s portion of responsibility for the conflict is his insistence in sharing a role in micro-managing Pierce’s upbringing; a lighter hand may have lessened the disputes between the parties to some extent.
30That being said, it was my impression that Mr. Di Bratto always acted in good faith in his desire to be involved with his child. He just wished to be advised about and involved in the major decisions involved in Pierce’s upbringing, and he just wanted to have his time with his child as recommended by the assessor or as agreed with Ms. Sebastiao. Had that been forthcoming, I believe that this matter would have been resolved; my impression is that the claim for full custody arose because Mr. Di Bratto saw little choice but to go down that road in light of Ms. Sebastiao’s lack of cooperation and withholding of access.
31During his testimony, Mr. Di Bratto did not get an adequate opportunity to use his own words; counsel persisted in asking her client leading questions during examination in chief and I was forced to admonish her on a number of occasions. Notwithstanding this, I found that Mr. Di Bratto’s evidence as given at trial to be credible and forthright. He attempted to answer questions honestly in cross-examination and did not lower himself to arguing with Ms. Sebastiao when she cross-examined him. He was willing to voluntarily agree that his income was substantially more than the income set out in his income tax returns. His evidence was consistent, and although he could act unreasonably, such as with the insistence to communicate through a communications book instead of the Family Wizard Program, he did not do so out of malice; he did so because he believed it to be best for his son or the situation at hand. Although he did not have a lot of insight into his actions, the evidence satisfies me that he can offer a stable and loving upbringing for Pierce and I believe that his actions in the short period of time since the parties separated to be motivated by good faith and his son’s best interests. I generally found his evidence to be credible, reliable and trustworthy.
Evidence of Ms. Sebastiao
32Ms. Sebastiao was unrepresented at trial. She gave evidence in chief with the assistance of her notes, which she was permitted to take with her to the witness box in order to help her organize her testimony. In giving her testimony, she repeated many of the criticisms that she had against Mr. Di Bratto which had become apparent from the assessment report and the complaints to the Children’s Aid Society. She did not, however, specifically address most of the incidents outlined in detail by Mr. Di Bratto during his testimony; she spoke instead in general terms, criticizing Mr. Di Bratto for excess alcohol use during the relationship, his parenting of her children and his family’s involvement in access visits. She did not address the numerous trips to the doctor after access visits; nor did she specifically address the issues raised by the Children’s Aid Society regarding her disciplining of her children. Significantly, although she spoke in general terms about Pierce, she did not speak about the activities that she enjoyed with Pierce, his living arrangements within her home or in general about how Pierce was doing in general. The emphasis in her testimony was to generally criticize Mr. Di Bratto and his family rather than to concentrate on the best interests of Pierce.
33Sometimes, it became apparent that Ms. Sebastiao was unable to see the contradictions in her testimony. For example, she said that Mr. Di Bratto and his parents used the daycare center as an access center; she quite properly pointed out that Pierce’s daycare should be a neutral location where the child is free of the dispute between the parents. However, she failed to explain how it was that she could justify going to the daycare center after Pierce’s access visits with his father to “comfort” Pierce. That in itself gives a negative message to Pierce about time sharing with his father; moreover, there seems to be little difference between Ms. Sebastiao visiting Pierce at the daycare to comfort him and his father’s visits to the daycare to have lunch with Pierce.
34As well, her evidence often did not make sense and was inconsistent. An example is her evidence about the private investigator; she said that she did not go to the wedding in London on April 21, 2013 because she became aware on the Friday of that weekend that a private investigator was watching the home. However, the evidence from the private investigator was that he only began watching the home on the Saturday of that weekend, and observed Ms. Sebastiao on Saturday, Sunday and Monday. Moreover, her evidence that she did not want to put her children at risk because they were being watched was simply unbelievable. She could not explain what risk the private investigator caused to her and her family, and the only risk to the family appeared to come during the surveillance on April 21, 2013, when the respondent made a sudden right turn from the center left lane of Bayview Avenue, and then drove away at a high rate of speed. This may have been because Ms. Sebastiao knew she was being followed, but that is speculative because her actions remained unexplained. The investigator was clear that he did not follow the subject at this time because it would involve breaking traffic laws and create a risk for the respondent and the public. In any event, it appears to me that the respondent was untruthful to both the court and to the applicant about the London wedding; she refused to answer questions as to whose wedding it was or where it was to take place. If the respondent could lie to the court and Mr. Di Bratto when she said that she was going to attend a wedding in London that weekend, there is no reason why her evidence at trial should be considered any more trustworthy.
35As well, Ms. Sebastiao did not provide the financial disclosure that she was ordered to provide. Although she served and filed a financial statement in October of 2014, she did not make it an exhibit at trial and her income tax returns and notices of assessment were not attached. Ms. Medeiros did not make it part of the trial record and it was only entered as an exhibit during Ms. Sebastiao’s cross-examination. She did not prove at trial the “personal loans” that were set out in that financial statement, which she said totaled $90,000; in fact, when cross examined about family assistance, she initially refused to say who had loaned her money and in what amount. She could not answer how those loans were calculated and effectively testified that her family members take care of bills that have to be paid. She could not say how much she owed her family. When pressed on who had loaned her money, she finally named two aunts.
36In addition, Ms. Sebastiao only provided her 2012 and 2013 income tax returns in the middle of trial, just before she was about to be cross-examined. Her job search was ordered to be provided by October 13, 2013; it was provided on October 24, 2014, more than a year later. When asked about the delay, Ms. Sebastiao said that she was concentrating on providing for her family and that responding to the lawyer was of secondary importance. The job search itself was a summary prepared by her; she did not provide actual e-mails or letters of rejection. Her financial disclosure was severely lacking in comparison to the detailed financial disclosure provided by the the applicant.
37Furthermore, in cross-examination, Ms. Sebastiao was argumentative, belligerent and defiant. She refused to give any ground even where it became embarrassingly apparent that she was not telling the truth. For example, early on in the cross examination, she was asked whether Mr. Di Bratto had paid her counsel’s trial retainer (in her dispute with Danny Corriea) in the amount of $20,000; she denied that the applicant had paid this amount. When asked where the money came from, she persisted in answering that it came from a “source;” she refused to disclose what that source was. She only admitted that Mr. Di Bratto had paid the retainer when confronted with the actual money order from Mr. Di Bratto payable to her solicitor.
38This pattern repeated itself over and over again during her cross-examination. On numerous occasions, Ms. Sebastiao became argumentative with counsel and refused to answer proper questions put to her. As noted above, she refused to answer whose marriage it was in London during the weekend of April 21, 2013. She refused to answer which family members had loaned her money and in what amount. Although counsel made the mistake of arguing back to her on occasion, this does not take away from the fact that it was apparent that her evidence was unreliable and self-serving. Throughout her cross examination, Ms. Sebastiao was argumentative, evasive and inconsistent.
39For all of these reasons, I found Ms. Sebastiao’s testimony to be both unreliable and without credibility. Where her evidence conflicts with that of Mr. Di Bratto or other witnesses at the trial, I specifically prefer the evidence of Mr. Di Bratto or those other witnesses.
40Moreover, her comportment as displayed during cross-examination, which was defensive and belligerent, leads me to believe that there may be mental health issues as suggested by the assessor, Mr. Hurwitz. Neither he, nor I are qualified to make a diagnosis of such mental health issues, but I did not find Ms. Sebastiao to be reasonable or rational when it came to Mr. Di Bratto or her children. In fact, the one occasion that I am convinced that Ms. Sebastiao was completely honest in giving her evidence was when she was asked by Ms. Medeiros as to whether she thought that Mr. Di Bratto was a good parent; her answer was an unequivocal “no.”
Evidence of Howard Hurwitz
41Mr. Hurwitz completed an assessment report in this matter. That report was dated April 4, 2014. Mr. Hurwitz recommended that custody be joint on the basis of a parallel parenting regime with Mr. Di Bratto retaining control over religious issues and Ms. Sebastiao being in charge of health issues for Pierce. He suggested that time sharing in favor of Mr. Di Bratto increase until it became a fully shared regime when Pierce turned four.
42Mr. Hurwitz testified at trial. His evidence was given clearly and concisely. Both parties were able to cross-examine Mr. Hurwitz, and during this cross-examination, he was dispassionate and did not become argumentative or defensive.
43He elaborated to some extent on his assessment report. He noted that Ms. Sebastiao was intent upon curtailing Mr. Di Bratto’s role with the child and indulged in what he called “negative gate keeping” to keep Mr. Di Bratto’s involvement at a minimum. He stated that Ms. Sebastiao chronically criticized Mr. Di Bratto and that there was no reason to do so as Mr. Di Bratto’s parenting appeared to be adequate.
44One portion of his evidence was extremely concerning. The constant and numerous visits to the doctor by Ms. Sebastiao and Pierce was raised by counsel and Mr. Hurwitz noted that Ms. Sebastiao was well aware that there were no health issues raised by the pediatrician regarding Mr. Di Bratto’s care of the child. He testified that the fact that Ms. Sebastiao to continue to be concerned about these health issues raised for him a concern of mental health issues for Ms. Sebastiao, for example the condition known as Munchausen’s Syndrome by Proxy. Ms. Medeiros put to the assessor the fact that Ms. Sebastiao had called the police to Mr. Di Bratto’s home over Pierce having the flu while in his care; Mr. Hurwitz called that incident “alarming” and testified that this was not “normative behavior.” Although Mr. Hurwitz is not a psychologist or qualified to give a diagnosis of anyone’s mental health conditions, his assessment of the respondent is concerning to say in the least.
45Finally, Mr. Hurwitz said that Ms. Sebastiao’s behavior was a risk factor for parental alienation in the future. He noted that of the two, the parent who would foster a relationship with the other parent was Mr. Di Bratto. Finally, he noted that Mr. Di Bratto could parent the child successfully on a full time basis, and that, based upon what had happened since his assessment, he indicated that he might be willing to change his opinion on primary residency because of Ms. Sebastiao’s “unreasonable behavior.”
46In cross-examination by Ms. Sebastiao, Mr. Hurwitz stated that her interactions with Pierce were “very relaxed and comforting.” He did not retreat from his position that Ms. Sebastiao’s medical interactions, including numerous trips to the doctor with Pierce, were unreasonable under the circumstances. He was cross examined by Ms. Sebastiao about the issue of the funeral, and whether Mr. Di Bratto’s request for access on the day of the funeral was unreasonable; Mr. Hurwitz stated that, in his view, and taking into account the age of the child, it was not unreasonable for Mr. Di Bratto to request access that day.
47The major inconsistency which remained unexplained was why Mr. Hurwitz would maintain that Ms. Sebastiao have control over medical issues in a parallel parenting scenario when there was a possibility that she exhibited mental health issues on this front. It was Mr. Hurwitz’s evidence that Ms. Sebastiao was unreasonable in her medical care for Pierce; if this was the case, then one would expect that this was not an area of responsibility where Ms. Sebastiao would retain control in a future shared custody regime.
Evidence of Rexon Ray
48Rexon Ray was the social worker assigned to this matter by the York Region Children’s Aid Society as a result of the July, 2013 complaint by Ms. Sebastiao about Mr. Di Bratto.
49Mr. Ray gave evidence that there was originally a complaint by Ms. Sebastiao about Mr. Di Bratto neglect of Pierce. She complained that he used an improper car seat and crib for Pierce and that Pierce’s diaper was “soaked” when he was returned after access. Ms. Sebastiao later made further complaints about Mr. Di Bratto including excess alcohol use and drug use as well as an allegation that Mr. Di Bratto had an illegal weapon.
50Mr. Ray inspected Mr. Di Bratto’s home. He found that the car seat and crib were in order and complied with safety regulations. When the later complaints were made, he asked Mr. Di Bratto to participate in drug and alcohol testing and after some initial hesitation, Mr. Di Bratto agreed to do so. The drug screening was clear. The drug, alcohol and weapons complaints were not verified.
51Mr. Ray visited both parties on a biweekly basis; as a result, he visited Mr. Di Bratto’s home every two weeks from his involvement in March, 2013 until December of that year when he discontinued the visits. He confirmed that Mr. Di Bratto’s home was adequate and safe for Pierce; it was his evidence that Mr. Di Bratto and Pierce were mutually affectionate and that Pierce responded positively to Mr. Di Bratto and his parents. He described the relationship between Mr. Di Bratto and Pierce as “good” and said that he had no concerns about Mr. Di Bratto’s parenting skills. He discontinued the visits in December because he saw little need of continuing with them.
52Ironically, other than the risk to the child caused by adult conflict regarding custody and access, which was verified, the only protection issues that arose during the investigation involved Ms. Sebastiao. Mr. Di Bratto had mentioned the cluttering and hoarding situation in Ms. Sebastiao’s home; Mr. Ray confirmed this and Ms. Sebastiao had to take steps to clear the clutter on the stairs and in the basement. More concerning were allegations of excessive physical discipline involving Ms. Sebastiao’s two older children, Blake and Kiiara: those concerns were verified and Ms. Sebastiao was instructed to complete a parenting program which she did.
53Finally, Mr. Ray confirmed that Pierce did have a positive relationship with his siblings and with Ms. Sebastiao and that there were no protection issues concerning Pierce and Ms. Sebastiao.
Evidence of Danny Corriea
54Danny Corriea is Ms. Sebastiao’s ex-husband. In the last year, Mr. Di Bratto has become friendly with Mr. Corriea and called him as a witness.
55Mr. Corriea confirmed that he and Ms. Sebastiao separated in December, 2008 and that it was acrimonious. He was charged with and convicted of an assault on Ms. Sebastiao. He said that Ms. Sebastiao insisted upon supervised access and would not agree to the access supervisors on his family’s side. He had to pay for supervisors; it was his evidence that, with the burden of support and setting up his own home, he was not able to exercise access to his children, Kiiara and Blake, for about six months. He implied that this was a veiled attempt to deny access to him.
56I do not believe that the issues between Ms. Sebastiao and Mr. Corriea and the events subsequent to their separation are relevant to the custody and access issues between the parties in this litigation. There are few similarities; there was an assault and the children of Ms. Sebastiao and Mr. Corriea are older than Pierce. The relationship between Mr. Corriea and Ms. Sebastiao was substantially longer than Ms. Sebastiao’s relationship with Mr. Di Bratto. To draw any analogies between these two very different situations would both be prejudicial to Ms. Sebastiao and unreliable, and I choose not do so.
57However, what is relevant is what has occurred since. The issues between Kiiara and her mother, presumably related to the discipline issues investigated by the Children’s Aid Society have resulted in Kiiara deciding to live with her father, Mr. Corriea. Kiiara does not presently see her mother. And notwithstanding this, Ms. Sebastiao took great exception to the fact that Kiiara was having contact with Pierce and Mr. Di Bratto during Pierce’s visits to Mr. Di Bratto; she said that this was something that should be decided between her and Mr. Corriea and should not have been arranged directly between Mr. Corriea and Mr. Di Bratto. It was unclear as to why this was the case other than an attempt to maintain control in a situation where control had been lost.
Evidence of Collaterals
58Two member of Mr. Di Bratto’s family testified. His mother, Delores Di Bratto testified, as did his sister, Elora Di Bratto.
59The evidence of Delores Di Bratto was somewhat questionable; she spoke Italian and required a translator. The translator did not directly translate but had a number of discussions with the witness prior to translating the witness’s evidence. That obviously affected the reliability of that evidence.
60That being said, Delores Di Bratto did state that she and her husband were supportive of Mr. Di Bratto’s claim for custody of Pierce and that they would be pleased to have Pierce living in their home. Elora Di Bratto confirmed that Pierce had her old bedroom at her parent’s home and that the home was adequately set up for Pierce.
61Both Mr. Di Bratto’s mother and sister confirmed that Mr. Di Bratto did all of the work of raising Pierce and that he would continue to do so if granted custody. They also confirmed that Mr. Di Bratto did ask for family members to be present at all access pickups and drop offs; he is concerned about having a witness there to avoid adult conflict with Ms. Sebastiao.
62Finally, both confirmed that they are not fond of Ms. Sebastiao. They do not have a close relationship and Delores Di Bratto confirmed that there was an altercation at the doctor’s office in which she was stating negative things in Italian about Ms. Sebastiao which Ms. Sebastiao actually understood because of similarities between the Portuguese and Italian languages. It appears to me that Mr. Di Bratto’s family will be less supportive of a relationship between Ms. Sebastiao and Pierce than is Mr. Di Bratto.
63Ms. Sebastiao had three friends testify on her behalf. Significantly, she called no family members, which confirms to some extent the evidence of Mr. Di Bratto that Ms. Sebastiao does not have a close relationship with her family notwithstanding her evidence to the contrary and her evidence that they are providing significant financial assistance to her. It is, indeed, surprising that Ms. Sebastiao called no family members in light of her evidence that she is not working and is without income other than the child support and assistance from family members.
64Ms. Sebastiao’s friends all confirmed the positive relationship between Ms. Sebastiao and her children including Pierce. One friend, Diana Tanzi, who has been friends with the respondent for a number of years, confirmed that Ms. Sebastiao was a “hands on” parent, and that she had a good relationship with her three children. She was a witness to the incident between Ms. Sebastiao and Mr. Di Bratto’s mother in the doctor’s office and she said that it was not the appropriate place for an altercation. She also confirmed that she observed Mr. Di Bratto drinking to excess, as well as an angry altercation between Mr. Di Bratto and a waiter when the waiter spilled coffee on him; she did not allege that Mr. Di Bratto was drinking on that particular occasion.
65As noted above, Isabella DePaola confirmed that Mr. Di Bratto refused to leave Pierce at the respondent’s home when Ms. DePaola was present for a drop off because Ms. Sebastiao was at a course. This appeared to be notwithstanding the fact that Mr. Di Bratto had previously met Ms. DePaola on several occasions.
Analysis
66There are two major issues that this trial raises for consideration. The first is, of course, custody and access; with whom should Pierce live and to structure the relationship between the parties? What will be the time sharing between the parties?
67The second issue is financial: what support should have been paid by the applicant and what support should be paid in the future? That entails a review of the issues of income imputation raised by both parties.
Discussion of Custody and Access Issues
68I must firstly determine the residence of the child as well as whether custody will be joint or not. Once these fundamental issues are determined, then time sharing must be determined.
69Both parents claim primary residence of Pierce. Mr. Di Bratto asks for joint custody of Pierce subject to a parallel parenting regime while Ms. Sebastiao says that she should have sole custody of Pierce. Although Mr. Di Bratto requests joint custody, when reviewing his opening statement and the areas of control that Mr. Di Bratto is requesting, it is apparent that he is asking for sole custody as he claims exclusive parenting authority over over the major issues of both health care and education, leaving little else for Ms. Sebastiao to decide on.
70When Mr. Di Bratto testified, he spoke of his parenting plan. He said that he was requesting joint custody of Pierce, with primary residence to be awarded to him. Alternatively, he said that that, at the very least, custody should be shared on an equal basis and that it should be joint. He proposed that he would continue living with his parents, and Mr. Di Bratto’s mother confirmed that they had discussed this plan and that she and her husband agreed with and would support their son. When I asked him what access would look like, Mr. Di Bratto said that Ms. Sebastiao should have the time sharing that he is receiving right now under the order of Kaufman J. made on June 5, 2013.
71When Ms. Medeiros gave closing submissions, she concentrated on a parenting plan which would involve parallel parenting. She said that this would meet the child’s best interests. She did not specifically address what areas of responsibility would be left with each party. Again, she re-iterated that Mr. Di Bratto should have primary residence of the child, or at the very least, shared care and control.
72Ms. Sebastiao did not give evidence at trial as to her parenting plan. She also did not provide a written opening statement. However, based upon a review of the assessment report, it appears that she provided a parenting plan to Mr. Hurwitz and that she is claiming sole custody of Pierce. She told Mr. Hurwitz that she felt, at the time of the assessment report (between October and December, 2013) that Mr. Di Bratto should not get overnight access, but that access should be increased to every second weekend after April, 2014, after Pierce turned two years old, as well as a short midweek visit. She told Mr. Hurwitz that Mr. Di Bratto could not be trusted to make good decisions for Pierce and accordingly, she should have sole decision making authority over all areas concerning Pierce. When I asked her at trial about the time sharing that she would provide to Mr. Di Bratto, she said that he should get the time that he gets now, but that the three days per week should be consecutive as the days spread out over the week were confusing.
73During her closing submissions, Ms. Sebastiao stated that Pierce should be left in his “loving home” where he had been raised since birth. She stated that she disagreed with the assessor’s suggestions for parallel parenting and she focused on the negative about Mr. Di Bratto; she said that Pierce would be exposed to heavy smoking and drinking at Mr. Di Bratto’s residence, that Mr. Di Bratto had not demonstrated compassion in the past, and that there were safety issues, particularly concerning Mr. Di Bratto’s drinking and Mr. Di Bratto’s parents transporting the child.
74Mr. Hurwitz also proposed a parenting plan as part of the assessment. He recommended joint custody subject to a parallel parenting plan; Mr. Di Bratto would have control over religion so that he could arrange for Pierce’s baptism and Ms. Sebastiao would have control over educational and health issues. He said that primary residence should remain with Ms. Sebastiao because of the child’s age and because Pierce is familiar with Ms. Sebastiao’s home and routine; he also said, however, that by the time that Pierce turned four, that custody should then be equally shared on a 5-5-2-2 schedule. He did state during testimony that, because of Ms. Sebastiao’s hyper-vigilance and because of her numerous trips with Pierce to the doctor’s office, that he thought that Ms. Sebastiao suffered from mental health issues. Mr. Hurwitz was open to changing his recommendations giving Ms. Sebastiao decision-making authority over health care issues. He also said that Mr. Di Bratto could parent Pierce as a primary residence parent, and that, in view of Ms. Sebastiao’s numerous trips to the doctor, that he would be open to re-assessing his position that Pierce should remain in the primary care of Ms. Sebastiao.
75During her closing submissions, Ms. Medeiros stated that both parties were good parents to Pierce. And the evidence backs this up. Both Mr. Ray and Mr. Hurwitz confirmed that both the applicant and the respondent were loving parents to Pierce and that each party interacted with Pierce in an appropriate and loving fashion. Both parties appear to be excellent and loving parents to Pierce, and I have no hesitation in making this a finding of fact in this trial.
76In reviewing this issue, I have considered the respondent’s allegations that the applicant uses alcohol to excess, uses drugs, smokes and is a risk to the child. This statement was not confirmed by any of the evidence given at trial. Ms. Sebastiao did not cross examine Mr. Di Bratto about alcohol use; neither did she give testimony about it in her own evidence other than to say that he consumed alcohol at family events which created some discomfort. In cross examination, Mr. Di Bratto allowed that he had a few cigarettes during trial, but that he had also previously quit smoking. No evidence was given as to how much he smoked. Although Diana Tanzi spoke about the applicant’s alcohol use, it was confirmed in cross examination that Mr. Di Bratto consumed alcohol during social events when others were drinking; she confirmed that while she had seen Mr. Di Bratto “happy,” she had never seen him drunk.
77The Children’s Aid Society investigated the respondent’s allegations of drug and alcohol use and did not verify those allegations. Mr. Di Bratto’s drug tests came back clean. Other than the respondent’s evidence, which I do not find to be trustworthy, the respondent has not provided any concrete evidence that the applicant drinks and smokes to excess. I specifically dismiss the respondent’s allegations of alcohol and drug use. The applicant’s home and respondent’s home are evenly matched. Accordingly, the decision about custody must be based upon other criteria.
78The starting point has to be s. 24(2) of the CLRA which sets out the general criteria for determining the best interests of a child in a custody proceeding under provincial legislation:19
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
79As noted above, these parents appear to have an equally loving and meaningful relationship with their son. They are on an even plane as far as paragraph (a)(i) is concerned. As well, as confirmed by Mr. Ray and the C.A.S. investigation, both parties appear to meet the basic physical needs of the child under paragraph (d). Their parenting abilities to be considered under paragraph (g) as well appear to be on an equal par; this was confirmed by the assessor’s observations as well as the evidence presented to me at trial. The issues that have to be reviewed in the present case and as raised by the parties in their evidence and submissions are therefore issues under paragraphs (a)(ii) and (iii), (c), (d), (e) and (f) of s. 24(2).
80It is apparent that s. 24(2) is not intended to be an exhaustive list. Added to those considerations is the major issue of which parent is willing to maximize contact and encourage a relationship with the other parent. This is not mentioned in the CLRA, but was codified in s. 16(10) of the Divorce Act,20 which reads as follows:
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
81Although the Divorce Act is, of course, inapplicable to the present case as the parties were unmarried, in my view this principle holds equal weight to the other criteria set out in s. 24 of the CLRA. That is because best interests govern in any custody dispute, and it is presumed to be in the best interests of any child that the contact with both parents be maximized for obvious reasons.
82Maximization of contact by the child to both parties is also a major indicator of whether a party in a custody proceeding can also best meet the needs of the child. A parent who promotes the child’s contact with the other is presumably doing so because he or she also desires to promote the child’s relationship with the other. The willingness to do so is obviously a positive attribute for any person seeking custody as this shows that the parent is willing to set aside any of their own personal animosities against the other in the best interests of the child. It bodes well for the child’s relationship with both parents in the future as well as future cooperation between the parties. The corollary of this is, of course, that custody is contraindicated for a party who does not wish to promote the relationship between the child and the other parent. For obvious reasons, that is seen as harmful to the child and it eventually sets the stage for potential parental alienation. The “maximum contact” principle has been applied in custody matters on numerous occasions and is an essential part of any consideration of the best interests of a child subject to a custody dispute: see for example Izyuk v. Bilousov, 2011 ONSC 6451, [2011] O.J. No. 4963 (S.C.J.) at paras. 420, 549 and 559.
83As noted, when we look at these parties’ respective parenting abilities concerning Pierce, the homes that they are offering and their general parenting abilities, these parties are on an even playing field. The assessor confirmed that both parties offer secure and loving homes and each has an equally loving relationship with Pierce. Based on the observations of the assessor, Pierce appeared to be equally safe and secure in the homes of both parents. Notwithstanding the claims by Ms. Sebastiao that there are safety issues in the home of Mr. Di Bratto because of alleged drug and alcohol use and weapons allegations, she had little to offer to substantiate these allegations, and the evidence from the Society worker confirmed that he had few concerns over Pierce’s safety in Mr. Di Bratto’s care. I have found that there is no reliable evidence to support those allegations. The allegations raised, in fact, more concerns in my mind about Ms. Sebastiao than they did about Mr. Di Bratto.
84The fact that these parents are equally capable, I presume, was the reason that this assessor, Mr. Hurwitz, recommended shared care once Pierce reached the age of four. I have found the assessor’s evidence to be credible, and his assessment is a reasoned approach to the dispute. Unfortunately, however, I am forced to disagree with Mr. Hurwitz. I do not believe that shared parenting is or can be appropriate in the present situation.
85Firstly, and this was acknowledged by Mr. Hurwitz, the child is presently too young for a shared arrangement. He is less than three years of age, and requires, at that young age, a place that he can call home. I do not know Pierce and cannot judge his level of maturity, but in my view, a very young child needs stability, and in my view, a shared arrangement may not offer the stability that a child of Pierce’s age needs. I realize that this is a generalization, and that specific circumstances may displace this viewpoint; however, I was offered no evidence to indicate it to be in Pierce’s best interests that a shared arrangement be ordered.
86Presumably for these reasons, the assessor delayed the sharing of custody until Pierce turned four; in evidence, Mr. Hurwitz said that the maximum time that Pierce at that age should be away from a parent would be five days and preferably three to four days. However, I do not believe that shared custody is an option for a further reason, which is the level of conflict between these parents. I have already determined that these parents can agree on nothing between themselves. There is an intense degree of animosity and lack of cooperation between these parties. This was confirmed by the evidence as well as the assessor’s observations during the joint session. Assuming this continues, Pierce in a shared custody arrangement would be directly exposed to that animosity on a regular basis as he went back and forth between the two households. There would be little or no peace in his life. Decisions would be made in each household, some of which may be intended to sabotage his life in the other household. Without some degree of cooperation or at least a modicum of civility, it appears to me that a shared custody relationship would not be in the best interests of Pierce.
87It is apparent from the recommendations of Mr. Hurwitz that he hopes to mitigate these effects through joint custody with a parallel parenting arrangement. Parallel parenting has been called a “sub-category of joint custody”21 that allows the court to divide up the responsibilities of the parents in order to avoid the need for destructive communication. In the present case, for example, Mr. Hurwitz recommended that Ms. Sebastiao have sole decision making authority over health and educational issues and that Mr. Di Bratto have the right to make decisions over religion. During evidence, he mentioned that, because of concerns about Ms. Sebastiao’s numerous trips to the doctor with Pierce, consideration might be given to giving Mr. Di Bratto decision making authority over health issues. Whatever the areas of authority granted to each parent, were parallel parenting ordered, each parent would be solely responsible for making decisions within their exclusive areas of decision making authority, subject to any ordered right of consultation.
88In the normal course, and based upon the present state of the law, joint custody would be completely inappropriate in the present case. The leading case regarding the appropriateness of a joint custody order remains Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.). The case has always stood for the principle that, where parties have an inability to communicate between themselves without causing harm to the child, joint custody is not in the best interests of the child. See also Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (C.A.). It is apparent that, with these parents, based upon their inability to communicate or agree on the smallest thing, and because of their animosity towards each other, that joint custody would be harmful to this child. This is especially so with a child this young; as noted by Quinlan J. in Lapalme v. Hedden, [2012] O.J. No. 5746 (S.C.J.) at paragraph 56, in considering joint custody, “the younger the child, the more important communication is.”
89This is not a case, such as that in Hoffman v. Hoffman, [2013] O.J. No. 289 (S.C.J.) where the parties “are able to focus jointly on [the children’s] best interests” or where “[n]either parent has demonstrated conduct calculated to alienate the children from the other.” In the present case, the parties’ level of communication has been, as stated above, abysmal. The text messages indicate an inability by the parties to discuss or agree on the smallest issue and are characterized by extreme lack of trust. Indeed, as noted above, the parties are not even able to agree on a method of communication. They have required numerous interventions by the police, child protection authorities and the courts. Over the past two years, since these proceedings began and the parties separated, their custodial relationship has been micro-managed by the case management justice, and joint custody would only prolong that state of affairs.
90As stated, however, parallel parenting is a subset of joint custody which may be ordered where joint custody would otherwise be inappropriate. It might be used to permit a shared parenting arrangement where it would otherwise be impossible. It might also be used to mitigate a situation where the child is in the custody of one parent who wishes to exclude the child from the other parents’ life. Were Ms. Sebastiao to retain primary residence of Pierce, for example, an order for joint custody subject to parallel parenting could be used to protect Pierce and Mr. Di Bratto from “alienating or undermining behaviour… displayed by a parent who is otherwise a good parent (perhaps the primary parenting figure in the child's life).”22
91In K.(V.) v. S.(T.), 2011 ONSC 4305, Chappel J. examined the concept of parallel parenting in detail. A useful summary of the principles regarding parallel parenting in that case was extracted by Murray J. of the Ontario Court of Justice. In Sader v. Kekki, [2013] O.J. No. 5286 (C.J.), at para. 133, she summarized Chappel J.’s decision on the following terms:
Justice Chappel … identified significant factors which courts have considered in determining when a parallel parenting order may be in a child's best interests.
Both parents have strong ties to the child, and prior to separation each had "consistently played a significant role in the child's life on all levels". It is hoped that a parallel parenting order may assist in preserving each parent's role as an equal parent.
Each parent is capable of making decisions in the child's best interests, and able to place the child's needs above their own needs and interests.
Although there is extensive conflict, the parents are able "at times to focus jointly on the best interests of the child"; a parallel parenting order may encourage such cooperation.
Alienating or undermining behaviour is displayed by a parent who is otherwise a good parent (perhaps the primary parenting figure in the child's life). In these cases, a parallel parenting order may "safeguard" the maligned parent's role in the child's life.
92In her submissions, Ms. Medeiros suggested that these parents could meet all of these criteria. Specifically, she said that the parents could “focus jointly on the best interests of the child.” Unfortunately, I am again forced to disagree.
93At no times have these parents even had the ability to focus together on the smallest issue. Illustrative of this is the set of joint meetings that the assessor set out in his report. A number of issues were put to these parents; they were unable to discuss any of those issues reasonably and most often they descended into bickering or outright warfare. Mr. Hurwitz was often forced to step in to disengage the parties.
94The trial evidence confirmed his observations. The emails are replete with disagreements on diet, day care and medical issues. The parents could not agree on even which clothing Mr. Di Bratto could remove (or in fact, had removed) from the day care. They could not agree on the use of the Our Family Wizard program. They could not even agree on what Pierce’s diet should be, or indeed, whether he was on a special diet. The reasons for the parties’ acrimony are beyond the scope of this inquiry; however, it is apparent that these parties cannot, and have not to date, shown any ability to focus jointly on Pierce’s needs and best interests. There is no demonstrated capacity for these parties to share the responsibilities for Pierce’s upbringing in a joint custody arrangement, even where assisted by a division of responsibilities through parallel parenting. And until Pierce is substantially older, and more resilient, a shared or equal custody relationship would also not be in his best interests considering the present level of conflict between the parties.
95Therefore, custody of Pierce should be sole and one party must make decisions as to Pierce’s best interests and upbringing. The party with sole custody usually, but not always,23 also receives primary residence of the child, and in the present case, I believe it to be in Pierce’s best interests that he be placed in the primary care and sole custody of Mr. Di Bratto.
96In making this determination, I return to a consideration of the issues which I itemized above drawn from s. 24(2) of the CLRA and common law. They are as follows:
Sections 24(2)(a)(ii) and (iii): Extended Family
97The contrast between these two parties was stark concerning their extended families.
98Mr. Di Bratto lives with his parents. They apparently have a large home and Pierce has his own bedroom. It was apparent from the testimony of both Delores Di Bratto and Elora Di Bratto, that Mr. Di Bratto has a close and loving relationship with his family. That family also loves Pierce; they were there shortly after Pierce’s birth and have been involved in holidays and his birthdays as well as assisting in access pickups and drop offs and in medical appointments.
99Ms. Sebastiao is critical of Mr. Di Bratto’s family. She says that his parents are controlling and at times have been critical of her. There was an incident where Delores Di Bratto attended at a medical appointment and was critical of the way Ms. Sebastiao dressed Pierce (Ms. Sebastiao, who speaks Portuguese was able to understand Delores Di Bratto who was speaking Italian). Ms. Sebastiao has throughout stated that Mr. Di Bratto’s father’s driving during access visits was a risk and on one occasion refused access for that reason. Ms. Sebastiao says that she has no problems with Mr. Di Bratto’s family, but that they should not be in any sort of parenting role respecting Pierce.
100Even if these complaints are true, the fact remains that the relationship between Pierce and his paternal grandparents and other extended family is close and loving. This was confirmed by the evidence which I have outlined above, as well as the assessment report. The testimony of Delores Di Bratto, Elores Di Bratto and Mr. Di Bratto all confirm to me that it is Mr. Di Bratto who parents Pierce and not the paternal grandparents. Mr. Di Bratto offers Pierce a close and ongoing relationship with an extended family.
101This appears to be lacking in Ms. Sebastiao’s home. She spoke very little about her parents during her testimony, but when speaking to the assessor, she confirmed that her relationship with them was distant; she was close only to her grandfather who she moved in with when she was 18 and who is now deceased. Mr. Hurwitz noted that Ms. Sebastiao was “estranged from her family and did not provide any relative as a collateral source to be spoken with” as part of the assessment.24 Although Ms. Sebastiao originally noted that Pierce was close to his step siblings, one of those step siblings, Kiiara, has now elected to move in with her father and Pierce will apparently see more of her through Mr. Di Bratto than through Ms. Sebastiao. There was evidence that although Mr. Di Bratto’s family came to the hospital when Pierce was born, none of Ms. Sebastiao’s family did. Based on the evidence, it is apparent that Ms. Sebastiao has little to do with her extended family, and that they play a minimal role in the lives of her children, including Pierce.
102This factor favors Pierce having his residence with the applicant.
Section 24(2)(c): Stable Home Environment
103This factor clearly favors care of Pierce remaining with the respondent.
104There is no question, in my mind, that Ms. Sebastiao has provided a stable and loving home for Pierce since his birth. That situation would continue were Pierce to continue in Ms. Sebastiao’s care. There is also no question that it would be disruptive for Pierce, at this young age, to change residences. That is why the assessor determined that, notwithstanding his criticisms of Ms. Sebastiao, Pierce should remain in her primary care until age four. The status quo is therefore an important factor which favors Pierce remaining in the care of the respondent.
105That being said, there are concerns about Ms. Sebastiao’s home that go to the stability of that environment. Kiiara left the home because of altercations that she had had with Ms. Sebastiao. Those altercations resulted in the York Region C.A.S. remaining involved with Ms. Sebastiao’s family well after they finished their investigation of Mr. Di Bratto. There were concerns about clutter which had to be addressed by Ms. Sebastiao and it is still unknown at this time whether Pierce is now in his own bedroom in Ms. Sebastiao’s residence.
106All of that being said, I acknowledge the assessor’s opinion that to change residences would be harmful to Pierce because of the “primary parenting role that Ms. Sebastiao has assumed historically” and because “Ms. Sebastiao is more familiar with Pierce’s routines and general care.”25 I also note that Mr. Hurwitz indicated at trial his willingness to reassess this conclusion in light of additional evidence raised at trial about Ms. Sebastiao’s unreasonable behavior, especially concerning medical issues.
Section 24(2)(e): Respective Parenting Plans of the Parties
107Mr. Di Bratto presented a parenting plan at trial. He said that he wished primary residence of Pierce in a joint custody relationship with Ms. Sebastiao. At the very least, he requests shared custody. When asked, he said that Ms. Sebastiao should share time with Pierce in the same manner he is now sharing time under the temporary order of Kaufman J. He suggested a parallel parenting regime; however, based upon Mr. Di Bratto’s opening statement it was apparent that he was proposing that the majority of important decisions concerning Pierce would be made by him.
108This contrasts with the plan presented by Mr. Di Bratto to Mr. Hurwitz. That plan appears to have involved joint custody with primary residence to Ms. Sebastiao. He had mentioned elsewhere that he would like to have primary residence, but he recognized that to be “unrealistic”; however in his parenting plan, he said that should Ms. Sebastiao continue to marginalize him sole custody in his favor was an option.
109Ms. Sebastiao did not present a parenting plan at trial. She did, however, present one to Mr. Hurwitz. Ms. Sebastiao suggested to Mr. Hurwitz that she receive sole custody of Pierce. She told him that she did not want to “wait for [Mr. Di Bratto] to get back to her” about a decision. Although she stated that she was in favor of Mr. Di Bratto receiving overnight access at trial, at the time of the assessment, she apparently felt strongly that Mr. Di Bratto should not receive overnight access as it was “confusing” to Pierce.26
110The fact that Ms. Sebastiao failed to provide a parenting plan at trial is concerning. This may, however, be related to the fact that Ms. Sebastiao was unrepresented at trial and may not have known to present a plan at trial.
111That being said, the assessor compared the respective plans of the parties. He found Mr. Di Bratto’s plans to be “realistic” while Ms. Sebastiao’s plan was a “continuation of her wanting to limit Mr. Di Bratto’s contact with Pierce.”27 I agree with his assessment.
Section 24(2)(f): Permanence and Stability of Family Unit
112This is related to paragraph 24(2)(a)(i) and (ii) above, and again favors the applicant.
113The applicant has a stable situation in most respects. He remains in his parent’s home, where he resided prior to moving in with Ms. Sebastiao. His parents have stated that they know of his parenting plan, that they are intent upon remaining in the same residence for the foreseeable future and that Mr. Di Bratto is welcome to live in that residence with his son. Mr. Di Bratto works at a profession that he has worked at for many years and is financially stable. There is no issue that his situation is established and constant.
114Again, Ms. Sebastiao criticizes the applicant for the fact that he lives with his parents. It appeared to be her view that Mr. Di Bratto was not doing this on his own, and that he is propped up by his parents. She implied that he was tied to his mother’s apron strings and did not have the maturity to leave home, when he should have long ago.
115Again, I find that the evidence supports the applicant’s contention that he parents Pierce when Pierce is in his care. The applicant, his mother and his sister all confirm this. It is to be noted as well that Mr. Hurwitz noted that “Ms. Sebastiao’s concerns about the grandparents are not supported by any information or set of facts, other than her dislike of them.”28 I find the presence of the applicant’s family to be a source of stability and a factor favoring custody to the applicant rather than as a disadvantage as advocated by the respondent.
116Ms. Sebastiao’s situation is, on the other hand, somewhat unstable. She says that has been unemployed for some period of time; it was not clear to me how she was meeting the expenses on her home. Although she stated that her family was supporting her, she was also estranged from her family according to Mr. Hurwitz and did not provide details about how she was making ends meet other than to say that she was borrowing money from her family. Her daughter elected to leave her care because of several altercations, and the Children’s Aid Society has been involved.
117Mr. Di Bratto’s home situation is presently significantly more stable than is that of Ms. Sebastiao.
Maximization of Contact
118This, to me, is the most important factor which favors custody being placed with Mr. Di Bratto. A parent who fails to advocate maximization of contact and a child’s relationship with the other parent must have good reason to do so. Otherwise, that parent fails a fundamental test for separated parents, which is to recognize that the child has two parents and that it is extremely crucial to the child’s best interests that he or she has a close and meaningful relationship with both parents.
119The evidence in this trial was largely focused on that issue. This was because there was ample evidence of Mr. Di Bratto’s problems with access and with what Mr. Hurwitz called Ms. Sebastiao’s “negative gatekeeping.”
120Unfortunately, the evidence supports that the responsibility for these problems lies with Ms. Sebastiao. It is clear that she has engaged in behavior designed to remove Mr. Di Bratto from the custodial relationship, and marginalize him from his involvement in his son’s life. There are numerous examples of this “alienating” behavior, which began soon after the separation and which continued to the date of trial. One of the more serious examples included complaints to the York Region C.A.S. based upon complaints against Mr. Di Bratto which were proven to have had absolutely no merit. Ms. Sebastiao has on several occasions refused access contrary to the outstanding court order and she also called the police to Mr. Di Bratto’s residence because Pierce had a temperature. She again breached a court order by changing the day care center without Mr. Di Bratto’s consent. Whenever a court order was capable of interpretation, Ms. Sebastiao interpreted it against Mr. Di Bratto. Repeating the words of Mr. Hurwitz, Ms. Sebastiao engaged in “negative gate keeping” in an attempt to reduce Mr. Di Bratto’s involvement with Pierce, and she often succeeded in doing so notwithstanding the numerous motions brought by his lawyer and his attempts to enforce the court orders through police involvement.
121Ms. Sebastiao’s views about Mr. Di Bratto were made clear when she stated in cross examination that she answered in the negative when asked whether Mr. Di Bratto was a good parent. And my views were confirmed by Mr. Hurwitz, who concluded:
Ms. Sebastiao has demonstrated limited willingness to co-operate around reasonable access notwithstanding Mr. Di Bratto’s efforts to do so. She views parenting of Pierce as her exclusive domain and gives minimal importance to Mr. Di Bratto’s role or the positive impact that his involvement may have for their son. Ms. Sebastiao’s priority is to strengthen Pierce’s relationship with her 2 other children. She does not support the father/son relationship and is making active efforts to minimize this contact.29
122He later stated that Ms. Sebastiao has to “take a step back” and hopes that his parenting plan will assist “both parents to disengage from one another.” Unfortunately, I think that Mr. Hurwitz is overly optimistic in his assessment that these parents, and in particular, Ms. Sebastiao, will be able to do so as a result of a parenting plan which involves any sort of co-parenting.
123There was no such marginalizing behavior on the part of Mr. Di Bratto. In evidence and in his assessment report, Mr. Hurwitz confirmed that Mr. Di Bratto would be much more likely to encourage a relationship between Pierce and his mother than would Ms. Sebastiao. That accords with my own observations of the parties; while Ms. Sebastiao concentrated on criticizing Mr. Di Bratto, he agreed unhesitatingly that, were custody granted to him, Pierce was entitled to access to his mother similar to that now enjoyed by him. The evidence supports a finding that Mr. Di Bratto would encourage and support a relationship between Pierce and his mother, and would not attempt to minimize the access between Ms. Sebastiao and Pierce.
Determination of Custody
124The findings that I have made on the s. 24(2) criteria, as well as the issue of maximization of contact, make it apparent that it is in Pierce’s best interests that he be in the care of his father. Mr. Di Bratto’s situation is more stable than is that of Ms. Sebastiao; he has the support of his parents and his family and he has put forward a parenting plan that shows that he has given long hard thought about the future.
125Most importantly, however, the evidence makes it clear that if Ms. Sebastiao continues to have primary residence of Pierce, she will continue to marginalize Mr. Di Bratto and the chaos that has been endemic will continue. Orders will continue to be breached and access will continue to be limited to Mr. Di Bratto’s strict entitlements, or less. Most importantly, the court will no longer be available to manage this matter and this will result in chronic involvement by the police and the child protection authorities. In other words, nothing will change, and that is unacceptable.
126However, there is no question that Ms. Sebastiao has provided a caring home for Pierce since his birth. That situation would continue were Pierce to continue in Ms. Sebastiao’s care. As well, there is no question that it would be disruptive for Pierce, at this young age, to change residences. That is the reason that the assessor determined that, notwithstanding his criticisms of Ms. Sebastiao, that Pierce should remain in her primary care until age four. The status quo remains an important factor which favors Pierce remaining in the care of the respondent.
127In my view, however, the destruction that will inevitably be wrought by Ms. Sebastiao’s behavior and animosity towards Pierce’s father override the harm that will be caused by a change in residency. Mr. Di Bratto has had extensive access, and Pierce is comfortable in his father’s home. He will not be going to a place that is unknown to him. Notwithstanding the fact that Ms. Sebastiao says that she does not work, Pierce goes to day care during the week and that will continue when custody changes. I believe that Mr. Di Bratto will ensure that the transition is as painless as possible; I also will be ordering time sharing which will provide Ms. Sebastiao with frequent and regular contact with Pierce.
128Accordingly, there shall be a final order granting Mr. Di Bratto sole and full custody of Pierce.
129There is an interest in strictly governing the relationship between the parties; even though I have awarded the father sole custody, the animosities between Mr. Di Bratto and Ms. Sebastiao are deep and will remain strong. Accordingly any custody order has to strictly delineate the relationship so that there are no misunderstandings, and so that Ms. Sebastiao may remain involved, to as great an extent possible, in Pierce’s life. I don’t know if the order can be described as a “multi-directional” order as described in a number of cases; however, some detail is necessary for these parties.
130I am going to direct that there be a right of consultation on major decisions. Although this consultation may encourage conflict, the final decision shall remain with the applicant. As well, communication should be through the “Our Family Wizard” program; I disagree with the position of Mr. Di Bratto that it is unnecessary, especially considering the past problems with communication and the inability of the parties to communicate by telephone.
131I am going to make the applicant solely responsible for medical and dental appointments for Pierce. In his testimony, Mr. Hurwitz called the incident where the respondent called the police to the applicant’s residence because Pierce had a temperature “alarming” and I am extremely concerned about the 20 or so doctor’s appointments made by the respondent for Pierce in the past year, often after access visits. The respondent shall be notified of any medical or dental appointment for Pierce, although it is hoped that this will not be a source of further intrusion or conflict by either party.
132I am going to order that Pierce’s day care and school be a “safe haven” for him without interference by either party. There should be one place for Pierce where he is isolated from his parents’ dispute, which has not happened to date concerning either party.
133I am also going to deal with travel and documentation for the child. I am going to allow Mr. Di Bratto to obtain a passport without the consent of either party. I am also going to permit travel with the child provided that an itinerary is provided to the other side. Original documentation shall remain with the custodial parent, unless travel is necessary when the passport shall be provided to the respondent if she is intent upon travelling with the child pursuant to this order.
134Therefore, and taking into account the recommendations of Mr. Hurwitz, the custody order shall include the following terms:
a. Day to day decisions on the health, welfare, education and religion of Pierce shall be made by Mr. Di Bratto;
b. The applicant shall be solely responsible for arranging for medical or dental appointments for the child and shall notify the respondent of any scheduled appointments, except in the case of emergency when the respondent shall be notified as soon as is practicable.
c. The applicant shall consult with the respondent on major decisions to be made respecting Pierce’s education, health and general welfare. Such decisions shall include schooling, day care, religion, health and elective surgery for Pierce. In the event of a disagreement on any decision to be made, the applicant shall have the right to make the final decision on the issue;
d. Neither party shall deprecate the other or permit others to deprecate the other in the presence of Pierce;
e. The parents shall communicate through the “Our Family Wizard” program. Each party shall be responsible for their cost of enrollment in the program;
f. The respondent may obtain medical, education or other information about Pierce directly from the child’s physician, day care provider, school or other service provider;
g. The applicant may obtain a passport for the child without the involvement or signature of the respondent.
h. Original documentation respecting Pierce, including his passport, birth certificate, Social Insurance Card and OHIP Card, shall be in the possession of the applicant with copies of that documentation to be provided to the respondent.
i. Either party may travel out of the province with the child for brief holidays not exceeding two weeks in duration. If a party wishes to travel outside of the country, he or she shall provide a detailed itinerary of the proposed travel plan, and upon receipt of the itinerary the other party shall execute all necessary travel consents. The travel consents shall be prepared at the expense of the party seeking to travel with the child. If the respondent intends upon travelling with the child, the applicant shall provide the child’s passport to the respondent, and the passport shall be forthwith returned when the child returns.
j. Neither party shall attend at the day care center or school other than for the purpose of picking up or dropping off Pierce, for parents’ activities scheduled by the school or day care (family barbecues, etc.) or for scheduled parent teacher interviews.
k. If either party wishes to change his or her permanent address, he or she shall give 60 days’ notice to the other party.
Discussion of Time Sharing Issues
135Based on my ruling above, care and control of the child passes with custody of the child in favor of the applicant father.
136I received no detailed submissions from either party as to the appropriate access which should be given. Mr. Di Bratto argued for at least shared custody; Ms. Sebastiao did not give detailed submissions regarding access either. However, I asked both parties at the end of their testimony what access they felt appropriate should they be given custody.
137Mr. Di Bratto suggested that Ms. Sebastiao share time with him according to his own present access schedule. That time sharing was set out in the order of Kaufman J. made on June 5, 2013. That order gives (as of Pierce’s second birthday) access to Mr. Di Bratto every second weekend from Friday at 3:30 p.m. (with pickup at the day care) to Sunday at 7:00 p.m. to be extended to the Monday if access falls on a holiday weekend. As well, Mr. Di Bratto received time with Pierce on Mondays from 3:30 p.m. to 7:30 p.m. and Wednesdays at 3:30 to Thursday mornings at 7:30 a.m. with pick up and drop off at the day care.
138At trial (as opposed to her position with the assessor, where she said that overnight access was inappropriate), Ms. Sebastiao said that she did not have a problem with the amount of time that Mr. Di Bratto spent with Pierce, but that she felt that three access visits per week were inappropriate and confusing to the child.
139I agree with this assessment. I also believe that the Kaufman J. order gives too little time with the respondent considering that she has had, until now, primary residence of the child. It is in Pierce’s best interests that he spend extensive periods of time with his mother.
140The order that I intend upon crafting will give Ms. Sebastiao three out of four weekends, from Friday evening to Sunday evening, to be extended to Monday evening in the case of a long weekend. She will also receive one overnight per week. In the normal course, all pickups and drop-offs, other than the Sunday night drop off, will take place at the day care center; this will work to isolate the child from parental conflict during pickups and drop-offs; it will also minimize contact between the parties, which I believe is necessary for these parties.
141I had expressed my disapproval of shared custody in this situation; I am aware, however, that this order appears to be close to a shared arrangement, considering that, out of a 28 day period, the respondent will have 10 overnights, which is about 36% of the overnights. Although I had expressed concern over the two different parenting styles, the intent of this order is to give the applicant father primary residence and a primary decision making role with respect to Pierce; this does not take away from the necessity to maximize time between Pierce and his mother.
142I also intend to order equal time sharing of major school and family holidays including Easter and Thanksgiving. Otherwise, by virtue of the majority of weekends being with respondent mother, the majority of long weekends will be with her. I am going to provide that each party shall have at least two uninterrupted weeks of time with each party, to increase to two consecutive weeks once Pierce has turned five and three consecutive weeks once he is seven. This is so that either party may plan holidays with Pierce during those school holidays.
143Accordingly, there shall be a final order that the parties share time with Pierce as follows:
a. Pierce shall reside with the respondent as follows:
i. Three weekends out of four, from Friday evening at 3:30 p.m. to Sunday evening at 7:00 p.m., to be extended to Monday at 7:00 p.m. with pickup to take place at the day care center and drop-off at the applicant’s residence;
ii. Every Wednesday night from 3:30 p.m. to Thursday at 7:30 a.m. with pickup and drop-off to take place at the day care center;
b. Pierce shall reside with the applicant at all other times.
c. The parties shall share holidays and special occasions as follows:
i. For the period between December 24 to 26 in each year, Pierce shall spend from noon on December 24 to noon on December 25 with one parent, and noon on December 26 to noon on December 26 with the other. During odd numbered years, the applicant shall have first choice of which period to spend with Pierce and in even numbered years the respondent shall have first choice.
ii. Excluding the period of time from December 25 to 26 each year, Pierce shall spend one half of the Christmas school holidays with each party, with the party having Pierce between December 24 to 25 having the first week of the Christmas break from the close of school or day care, and the party with Pierce between December 25 and 26 having Pierce during the second week of the Christmas break to his return to school or day care.
iii. For Thanksgiving weekend, in even numbered years the applicant to have Pierce from Friday at 3:30 or when school ends to Sunday morning at 10:00 a.m. and the respondent to have Sunday morning at 10:00 a.m. to Tuesday morning when Pierce shall be returned to the day care at 7:30 a.m. or when school commences, with this schedule reversing in odd numbered years.
iv. For the Easter weekend, Pierce to reside in alternate years with one parent from Thursday after school or day care until Saturday evening at 7:30 p.m. and with the other from Saturday evening at 7:30 p.m. until Tuesday morning at 7:30 a.m. or the commencement of school. The applicant to have Pierce the Thursday to Saturday period and the respondent to have Saturday to Tuesday period in odd numbered years, with the Easter weekend time sharing reversing in even numbered years.
v. The applicant to have Pierce all day on Father’s Day and the respondent to have Pierce all day on Mother’s Day, irrespective of the access schedule.
vi. March break to be divided between the parties, with the applicant having first choice of the first or second half of March break in even numbered years, and the respondent having first choice in odd numbered years.
vii. During summer school holidays, the normal schedule shall continue, provided that once Pierce turns six, the parties shall share time with Pierce during the summer school holidays on a week about basis;
viii. Each party shall be entitled to two non-consecutive weeks for holidays until Pierce turns five years of age, when each party may have Pierce for two consecutive weeks of holidays. If a party intends upon taking a holiday, he or she shall give at least 60 days’ notice of his or her intention to take a holiday. During these weeks of holidays, the regular time sharing schedule shall be suspended other than the period of time surrounding Christmas Day.
ix. These holidays may be taken at any time during the year until school begins, after which the holiday weeks shall be taken only during the scheduled Christmas or summer school holidays.
Child Support Issues
144There are both claims for retroactive child support and ongoing child support. As custody is changing pursuant to this order, the obligation for child support changes as well, with the respondent owing child support after this endorsement is issued.
145However, the respondent makes a claim for retroactive child support. The applicant has been paying all of the day care expenses since October, 2013 plus $502 per month for ongoing child support based upon his income which he says is about $53,000 per annum. The respondent says that the applicant’s income is more in the range of $170,000; she says that the applicant makes a lot of income in cash which is undeclared, and that, based upon the applicant’s hourly rate of $85 per hour, he could easily make that type of money.
146There is a real contrast between the quantity as well as the quality of disclosure made by the parties. Mr. Di Bratto filed three volumes of financial information in addition to his financial statement. Each volume was for a different taxation year, the first being 2011, the second being 2012 and the third being for 2013. The tax returns included Mr. Di Bratto’s statement of business affairs and the volumes also included copies of receipts which supported the business expenses claimed on the tax returns. There was also documentation provided regarding a condominium purchased by the applicant in 2011; he earns rental income from the condominium.
147On the other hand, the respondent provided little financial disclosure. She provided her income tax returns for 2012 and 2013 only late in the day while she was giving her evidence in chief during the trial. Notwithstanding a court order made by Kaufman J. on July 23, 2014 as confirmed by McGee J. at the trial management conference on October 24, 2014, Ms. Sebastiao never filed a financial statement with the requisite attachments prior to trial. As noted above, she had filed a financial statement without attachments in October, 2014; it was entered as an exhibit during Ms. Sebastiao’s cross-examination. I had little hard evidence regarding Ms. Sebastiao’s financial situation or her sources of income, other than her oral testimony given at trial. As noted above, I have also found that testimony to be profoundly unreliable.
148I must first determine the respective incomes of the parties for retroactive and ongoing child support purposes. I must then determine the retroactive and ongoing child support payable.
Applicant’s Income
149The applicant says that his income is somewhere between $50,000 and $55,000 per year. He acknowledges that his income is not fairly reflected in his income tax returns as he claims deductions which are not acceptable for child support purposes. He provided extensive disclosure of his work related receipts. Although he did not provide details of how he came to the income figure which he uses, his counsel stated during argument that certain deductions were acceptable, including, for example, vehicle and tool maintenance and business insurance expenses. He acknowledges that expenses with a personal component, such as cell phone expenses, may be removed.
150Ms. Sebastiao argues that Mr. Di Bratto has completely understated his business expenses. She says that there is a large cash component, and relies upon his potential income based upon Mr. Di Bratto’s hourly rate and the fact that he admitted on cross-examination that he has a two hour minimum charge for plumbing. She suggests that Mr. Di Bratto had potential earnings of approximately $176,000 based upon his $85.00 hourly rate multiplied by 40 hours for 52 weeks per year and she suggests that this income be attributed to Mr. Di Bratto.
151Mr. Di Bratto’s declared income for tax purposes has been traditionally very low. As noted above, his income noted at line 150 was between $7,483 in 2012 and $30,955 in 2013, with his income in 2011 being at a midpoint of $15,640. Mr. Di Bratto agreed that he charged expenses for tax purposes which would not necessarily be claimable for support purposes. As acknowledged by his counsel, income may therefore be imputed to Mr. Di Bratto based upon s. 19(1)(g) of the Child Support Guidelines which provides that income may be imputed where “the parent or spouse unreasonably deducts expenses from income.”
152To determine which expenses are unreasonable or reasonable, I must determine whether the expense claimed are for the payor’s “personal benefit”: see Nawrocki v. Nawrocki, [2014] O.J. No. 4568 (C.J.) at para. 65. If so, they should be clawed back into his income as these expenses are actually income which would be available to the payor, and by extension, to his child. As stated by Coutu J. in Hauger v. Hauger (2000), 2000 ABQB 423, 9 R.F.L. (5th) 46, at para. 29 (cited in Williams v. Williams, [2011] O.J. No. 3217 (S.C.J.) at para. 60), “If the payor’s children remained part of the payor’s household they would have the advantage of and would benefit from that disposable income and not just the payor’s taxable income.”
153As well, there was some evidence from Diana Tanzi that Mr. Di Bratto had offered to do a job for cash to save HST; accordingly, there is evidence that may support a finding that there is undeclared income to be added to Mr. Di Bratto’s declared gross income.
154Once this additional income is imputed or determined, it is also acknowledged by Ms. Medeiros that the additional income must be grossed up for tax liability as it is effectively undeclared taxable income: see Nawrocki v. Nawrocki, supra at paras. 68 and 69.
155Finally, as also noted by Nolan J. in Williams, without an income analysis, the calculation of self-employed income is “a less than precise task” and more art than science.
156O’Connell J. in Nawricki noted that there is an onus on a self-employed person to provide proof of his income and expenses and Mr. Di Bratto has provided extensive income disclosure. He has provided receipts of his Home Depot purchases for the business, copies of receipts for miscellaneous expenses for the business as well as receipts for expenses for the van used in the business. He further provided subcontractor invoices for 2012 and 2013. He provided business bank account statements and his invoices for work performed for all three tax years. He testified that the vehicle invoices he provided were for his business.
157Mr. Di Bratto testified that 2012, when his income was quite low, was not reflective of his income for support purposes. It was his evidence that during this year, he took time off to spend time with and help with Pierce. As it would be to Mr. Di Bratto’s advantage to take advantage of his low income for this year, I have no reason to disbelieve him. Accordingly, I am going to use Mr. Di Bratto’s income for 2011 and 2013 in determining his income for retroactive support purposes.
158Unfortunately in testifying, Mr. Di Bratto confirmed that the invoices and receipts in each of his financial disclosure volumes were his, but he never testified as to what the totals were for each set of documents. He also failed to relate these receipts and his financial disclosure to his income for tax purposes for each year. For example, he testified that the vehicle expense receipts at tab 7 of his first Financial Document Exhibit Book for 2011 were in respect of the expenses of his van and that these were the vehicle expenses used in his business; however, he never stated that this was how he came to the vehicle expenses used at Line 9281 of the Statement of Business Affairs appended to his 2011 income tax return. I do not intend upon going through every receipt to determine whether these expenses match up with the receipts provided to me at trial.
159Neither was I made aware as to how the applicant came to the suggested figure of $53,000 per annum which is the income he used to calculate and pay child support to the respondent after separation. Although counsel in argument stated that certain expenses had been removed from his income, such as one half of his cell phone costs, the income amount remains unexplained to this day.
160Even regarding the 2011 and 2013 taxation years, Mr. Di Bratto’s income has fluctuated substantially. In 2011, Mr. Di Bratto’s gross business income was declared to be $59,268. He provided evidence of his costs of doing business and his vehicle expenses as well as business taxes. He suggested removing about one half of the telephone expenses which totaled $915. His vehicle expenses were reasonably allocated and he did not claim capital cost allowance against the van. In addition, if I removed some of the “soft expenses” which were unproven, such as meals and entertainment of $3,250 and advertising of $1,273.05,30 you would still only be left with about $25,000 in income.31 Even ignoring the loss that Mr. Di Bratto claims from his condominium property, the income is well under that acknowledged by Mr. Di Bratto that year for child support purposes of $51,000 per year.
161As noted, I do not find 2012 to be representative of Mr. Di Bratto’s income, and I choose not to take it into account as determining Mr. Di Bratto’s income picture pursuant to s. 17 of the Guidelines.
162The income picture for 2013 is substantially different from 2011. During that year, the most recent year and a year during which Mr. Di Bratto had a support obligation, the gross business income increased substantially to $117,055. His net income was $33,816. His increase in gross income between 2011, the previous year when he worked on a full time basis, and 2013 was unexplained in testimony.
163He has again provided receipts as part of Ex. 4, which I assume prove his cost of doing business. Mr. Di Bratto testified that he was injured that year and this entailed extensive use of subcontractors during that year, which he says cost him $24,230. His gross profit in his income tax return was reduced by these two headings, which I find to be proper deductions, to $70,552.
164According to his income tax return for 2013, Mr. Di Bratto claimed a further $36,736 in expenses against his gross business income. In his evidence, he justified his insurance expenses, and I presume that the interest charges were in respect of the line of credit noted in his financial statement. I had little difficulty with his claims for accounting or professional fees; his return was obviously prepared professionally. The major expense claims that concerned me were as follows:
a. The applicant claimed $1,772 for advertising. Other than a minor cost of just over $60 for domain hosting, this expense was unproven and should be added back to income.
b. The applicant claimed $2,206 for meals and entertainment. This amount was unproven and has a personal component. It should be added back to income.
c. Office expenses had substantially increased from 2011 to $4,732. This was unexplained, especially in light of the applicant’s evidence that his van was his office. I am forced to be somewhat arbitrary in reducing this by one half to $2,366.
d. Mr. Di Bratto claims $1,025 for “supplies” at line 8811. This was unexplained and would seem to overlap with the costs of doing business, including purchases during the year. I am going to charge this back to the business.
e. Mr. Di Bratto claims $2,033 for telephone. He acknowledged in evidence that half of this, or $1,016, should be brought back into income.
f. Mr. Di Bratto claims $18,602 in vehicle expenses. He did not file as an exhibit his calculation of this amount, but he appears to be charging the whole amount of his van plus another $3,600 for the business use of his own vehicle. In 2011, he only charged around 70% of the use of that vehicle as business use and nothing for his own vehicle. He has also claimed capital cost allowance against his van which was also unclaimed in 2011. I am going to disallow the capital cost allowance as there was no evidence of any intention to replace his vehicle and no evidence of a capital account that Mr. Di Bratto was placing money in for replacement of the van. I am also eliminating as well as the charge for the use of his own vehicle; this was not done in previous years and was unexplained in evidence. Notwithstanding Mr. Di Bratto’s testimony that he used the van wholly for his business, I have concerns because he says that he was using subcontractors for part of his business and they would presumably use their own vehicles to get to the job site. Seventy per cent of the use of the van would reduce the vehicle expenses to $9,096. The reduction in vehicle expenses is therefore about $9,506.
165Therefore, the reduction in expenses would result in $17,891 being returned to income. That amount should be grossed up for taxes. The auto gross-up under the Divorcemate Guideline calculator attached as Schedule A is $6,320 and this brings the applicant’s income to just over $55,000 per year which is slightly over the amount that the applicant was willing to use for his income for support purposes.
166I note that the applicant has a condominium apartment that he rents at a loss. The applicant was able to explain the loss for 2013 as he lost a tenant and only rented it for part of the year. I allow the deduction for that year but assuming it was rented for the entire year in subsequent years, there would most likely not be a loss. That would increase the applicant’s annual income in 2014 by $3,460, the amount of the negative deduction for that year.
167As well, the respondent led evidence that the applicant received cash income; she did this through evidence provided by Diana Tanzi who testified that Mr. Di Bratto had offered to take cash for a job that he quoted to her. It was Ms. Sebastiao’s position that Mr. Di Bratto took substantial income by cash and that if he worked full time at his hourly rate of $85 per hour for 50 weeks in a year, he would earn gross income of $176,000 every year.
168This argument assumes that there are no business expenses and Mr. Di Bratto has provided substantial evidence of his expenses in his three Financial Document exhibit books. As well, although the evidence from Diana Tanzi was not objected to, I note that the issue of cash income was not put to Mr. Di Bratto by Ms. Sebastiao during her cross-examination. Therefore, Diana Tanzi’s evidence about cash income would appear to be a breach of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.) as that should have been addressed with Mr. Di Bratto prior to the evidence being led by Ms. Sebastiao. I understand that Ms. Sebastiao was unrepresented and that the rule in Browne v. Dunn is not wholly understood by trained counsel; however, the evidence given was of one example where Mr. Di Bratto said that he would take cash for a job and without the issue being put to him in any event, I cannot find that there is evidence that he has a pattern of accepting cash income, especially considering the careful records he appears to have kept. I give the issue of cash income minimal consideration in determining Mr. Di Bratto’s income. I am not willing to find that it increases Mr. Di Bratto’s income by more than $5,000 per annum.
169Taking into account the condominium losses, I therefore find that in 2013, Mr. Di Bratto had an annual income of $55,000. I also find that this income increased to $60,000 per annum in 2014 based upon my disallowance of those losses in subsequent years. Therefore, child support should have been paid on the basis of those income determinations from the date of separation.
Respondent’s Income
170Unlike the applicant, the income of the respondent is calculated for the purpose of determining what ongoing child support will be based upon my ordered change in primary residence. Other than the respondent’s share of the day care costs that the applicant paid, there is no retroactive claim by the applicant against the respondent.
171Also unlike the applicant, the respondent provided very little disclosure. Ms. Sebastiao provided her income tax returns for 2012 and 2013 as well as a spreadsheet that she prepared as evidence of the jobs that she applied to between October 1, 2013 and August 28, 2014. There was nothing else. Although she filed a financial statement prior to trial, it was not placed in the trial record and neither party called my attention to it at trial until late in Ms. Sebastiao’s cross-examination. As well, the respondent failed to update her job search to the date of trial, provide copies of her resume or of any of the emails or responses by prospective employers in response to the respondent’s applications for those positions.
172As noted above, Ms. Sebastiao described herself as a business analyst. She said that her clients were generally banks and financial institutions, although her last job was with the Regional Municipality of York. Her jobs have generally been time limited contract positions. There was no evidence that she has recently had permanent employment offering any sort of job security. Notwithstanding this, she testified that her annual income prior to Pierce’s birth was in regularly in the range of about $80,000.
173Up until separation, Ms. Sebastiao worked for the Bank of Montreal. She went on maternity leave, and in 2012, her income was limited to $26,479 from Employment Insurance. In 2013, as stated above, she worked for the Regional Municipality of York, but this was a six month contract which ended in October, 2013. According to her 2013 return, her income from this source was $41,604. Other than $4,978 in employment insurance benefits, Ms. Sebastiao testified that she had no other income in 2013.
174Ms. Sebastiao says that she has no income at this time. It was her evidence that she subsists on the child support received from Mr. Di Bratto and Mr. Corriea as well as on her child tax credit. She says that her extended family has provided “some assistance” although the amount provided was not specified. In cross examination, she initially refused to say who has provided her with funds to live on. She eventually said that her aunts, cousins and grandfather had helped her and gave the name of two aunts who had helped her.
175It is the position of Ms. Medeiros that income should be imputed to Ms. Sebastiao under s. 19(1)(a) and (f) of the Child Support Guidelines. Those sections read as follows:
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
176Imputation of income based upon intentional under-employment is often relied upon by support recipients. As noted in Dickey v. Morrel, [2011] O.J. No. 5631 (C.J.), the leading case in Ontario is Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.). In that case, the court found that the word “intentional” was not synonymous with “bad faith.” All that is necessary is to show that the payor is “voluntarily” under-employed. Once this is proven, income may be imputed.
177As noted, Ms. Sebastiao has provided very little disclosure of her income situation. She filed a financial statement on the continuing record which was not placed on the trial record. That financial statement had no attachments addressing either Ms. Sebastiao’s income or with particulars of the family debts that she says that she relies upon to make ends meet as a result of her unemployment. She provided only two income tax returns for 2012 and 2013 and those were only given at trial; she did not provide her 2011 income tax return or any of her notices of assessment. Her job search records consisted solely of a spreadsheet without supporting documentation. It is clear that there was a legal obligation to provide financial information to the court and that Ms. Sebastiao did not. I have no difficulty in finding that Ms. Sebastiao comes within the circumstances set out in s. 19(1)(f) of the Guidelines in that she failed to provide income disclosure while under a legal obligation to do so.
178The failure to provide this information is directly related to imputation of income under s. 19(1)(a). The onus to lay the evidentiary foundation for imputation of income lies with the party seeking to impute income: see Dickey v. Morrell, supra at para. 32, Bekker v. Bekker, 2008 CarswellOnt 173 (S.C.J.), Joy v. Mullins, [2010] O.J. No. 4202 (S.C.J.) and Scitzas v. Szitsas, 2012 ONSC 1548 at para. 60. Furthermore, as stated in several of those cases, once the evidentiary basis for imputation of income is made out, the onus then shifts to the responding party to address the basis for imputation of income.
179It is difficult, however, for the party seeking imputation get to the first step, laying the evidentiary foundation, where the party against whom income is sought to be imputed makes little or no financial disclosure to the court. In the present case, all that Ms. Medeiros had to work with was a spreadsheet without supporting documentation as well as two income tax returns. Although the respondent had filed a financial statement in October, 2014, and it was made an exhibit at trial, it was generally unhelpful. The financial statement says that there were two personal loans which totaled $90,000; however the respondent has provided no particulars of those loans and did not testify what those loans were for or whether these represented the family assistance that she received to make ends meet. When cross examined on the assistance provided by her family, she was evasive and refused to commit to an amount or who exactly had loaned her money. It is difficult for a party to lay an evidentiary foundation on the basis of disclosure that was both vague and incomplete.
180Here are the facts as could be gleaned from the very limited financial information provided by the respondent. She confirmed in cross examination that she had been out of work since October, 2013. Her employment insurance benefits have long expired. She receives $700 per month from Mr. Corriea as well as another $500 or so per month from Mr. Di Bratto. She also receives about $1,000 per month by way of HST credits and her Child Tax Credit. Therefore, the total amount she has by way of income is, according to her, about $2,200 per month.
181Her expenses according to her financial statement are about $7,000 per month. As such her deficit is about $4,800 per month. She has been running that deficit since November, 2013, as her employment insurance ran out at that time.32 That would mean that, by the time of trial, she may have borrowed some $57,600 from family members.
182I find that simply unbelievable. I firstly note that the assessor, Mr. Hurwitz, stated in his assessment that “Ms. Sebastiao … is estranged from her family and did not provide any relative as a collateral source to be spoken with as part of this assessment.”33 She also did not call any family member as a witness, either in support of her custody claim or to prove the family debt that she says pays the majority of her bills. In addition, Mr. Di Bratto testified that he rarely saw members of the respondent’s family; he said in cross-examination that the only family members that he ever met were an aunt and the respondent’s grandfather, who is now deceased, as well as several cousins who he also met on a jobsite.
183In addition, the respondent was deliberately vague, if not evasive, about the amount owing on the family debt that she owes, as well as who it is owed to. She failed to provide a reasonable explanation as to how she is making ends meet, and paying the expenses of $7,000 per month that she needs to maintain her household. Her evidence about her family debts was inconsistent as was her evidence on the “personal loans” set out in the financial statement. She said that a family member had loaned her the $30,000 amount but refused to provide the name of that family member. She said that the $60,000 was loaned through an investment advisor, but she could not remember the name of the lender on that loan. Her evidence on these debts and her family loans was completely unreliable.
184This, combined with the lack of disclosure that I have received, combined with Ms. Sebastiao’s general lack of credibility in giving evidence at trial, leads me to believe that Ms. Sebastiao may well be deceiving the court as to her actual income, or as to how she is actually paying her ongoing expenses on a monthly basis. I simply do not believe that Ms. Sebastiao has a family willing to provide her with the funds that she says that they provide, especially in light of the other evidence we have about Ms. Sebastiao’s family and her relationship with other family members. There is either income from employment, or income from some other source, but I simply do not believe that Ms. Sebastiao’s family is willing to lend the extensive sums that she says they are; if in fact, they were doing so, Ms. Sebastiao could have easily called family members to give evidence as to the funds that they have provided her.
185I do not need to make this finding, however, in order to determine income for Ms. Sebastiao. I am content to confirm that Ms. Sebastiao’s income for 2013 was as set out in her income tax return, which was $46,582.34 In considering income in subsequent years, I find that Ms. Sebastiao has been vague and evasive in making financial disclosure, making it impossible for the court to determine in any exact manner her present income. I also am cognizant that Ms. Sebastiao conducted a job search but has failed to provide any hard or primary evidence of that job search other than a spreadsheet that she herself prepared. She is also a skilled worker; at least as of 2012, she was working in her field and making the equivalent of $80,000 per year. If she is unemployed, she has failed to provide evidence of why she has failed to obtain employment; in her evidence, she said that the report was a snapshot, and that she was actively looking for work, but she did not give any reason why she was not able to find a job. Her present income has not been adequately explained. I find that income should be imputed to Ms. Sebastiao based upon lack of disclosure, as well as the fact that she has failed to prove that she is actively looking for work in her field. She confirmed that she is attempting to update her skills, but she has had a year to do so.
186As well, she appears to be paying her bills and confirmed that she is doing so in cross-examination. I do not believe that she is receiving assistance from family members and that the income is coming from some other source.
187The real issue is what income should be attributed to Ms. Sebastiao.
188This is not crucial respecting 2014 as the only issue is Ms. Sebastiao’s share of the day care expenses. It becomes important on an ongoing basis, as she will owe child support on an ongoing basis when custody changes.
189I am going to find that in 2014, her income was similar to the income that she earned in 2013, which was $46,582. In 2015, for the purposes of ongoing child support, I find that the respondent’s income is $60,000 per annum, similar to that of the applicant.
190I realize that this amount is less than the respondent has earned historically. I make this finding for several reasons. Firstly, this may be a different economy from that which the respondent worked in prior to Pierce’s birth. Certainly, her jobs have been contract jobs and have resulted in uncertainty in her employment situation. I do believe that she was unemployed for a period of time and has had difficulty in obtaining steady employment; I simply do not believe that her income is nil as alleged by her. As well, although I know that the respondent has made $80,000 per annum in the past, I do not have a long term picture of her employment. In light of the fact that her work is contract only, and uncertain in duration, I do not believe that a finding of $60,000 per annum at this time is unfair or inconsistent with the respondent’s situation.
Retroactive Support
191I am going to calculate retroactive support from 2013 to the present, both as to guideline support payable by the applicant and as to the division of daycare costs. I intend to calculate the set off amount owing, and then address these amounts in light of the outstanding costs awards presently outstanding.
(a) 2013
192Regarding ongoing support, I have found that in 2013 that the applicant’s income was $55,000 per annum. He should have been paying guideline child support of $498 commencing in April, 2013; from that month to December 31, 2013, he should have paid nine months of support which would total $4,482.
193In fact, the applicant paid $245 for each of the first two months, and then after that date paid $461 per month for five months. The total paid was $2,795. Mr. Di Bratto stopped paying support from October, 2013 to March, 2014 because the respondent was ordered to pay costs of $2,100 over a three month period beginning in July, 2013 but did not. I intend upon re-addressing this costs amount once the support amounts are calculated.
194Mr. Di Bratto and Ms. Sebastiao were each paying one half of the day care until Ms. Sebastiao became unemployed in October, 2013. Once she became unemployed, the daycare was reduced, but Mr. Di Bratto paid the entire day care cost.
195It appears that both parties deducted day care expenses from their income in 2013. Ms. Sebastiao deducted $7,721 in child care expenses; of that, $6,314 was in respect of Pierce. At the same time Mr. Di Bratto deducted $6,144 for Pierce’s day care. Assuming both of those deductions were permitted by CRA, I will assume those figures to be accurate for child care purposes and for the sharing of those expenses.
196As can be seen by the attached Divorcemate calculation attached as Schedule B, based upon the payments that each party claimed for child care, Mr. Di Bratto should have also paid $8 per month towards the child’s daycare for a total of $7235
197The retroactive support owing by Mr. Di Bratto is therefore $1,769.36 Set off against this is the order for costs of $2,100 ordered by Kaufman J. on June 5, 2013. Therefore, there still remains owing $331 in costs which shall be carried over to 2014. Because of the costs award, there is no retroactive child support owing by Mr. Di Bratto for 2013.
(b) 2014
198For 2014, I have determined that Mr. Di Bratto’s annual income was $60,000. As such, he should have paid child support in the amount of $546 per month. The total payable for base child support by Mr. Di Bratto 2014 would be $6,552.
199Mr. Di Bratto paid $3,432 in support in 2014 up to the date of trial as set out in Tab 8 of his Exhibit Book. If I assume that he continued paying support at the current rate of $502 per month, he would then have paid a total of child support of $4,436 in 2014. This means that he owes $2,116 in retroactive guideline child support for 2014.
200I have found that Ms. Sebastiao’s income for 2014 was similar to her income in 2013, which was $46,582. This means that she should pay a 43.2% proportionate share of the after tax cost of daycare expenses.
201In evidence, Mr. Di Bratto says that, up to the date of trial, he paid $7,893 toward day care. Assuming his final payment for December, 2014 is similar to his payment for November, the total that he will have paid would be $8,343 for child care.
202Again, assuming he succeeds in deducting the maximum allowable deduction for daycare expenses for tax purposes,37 Ms. Sebastiao’s share of the daycare expenses would be $228 per month, or $2,736 based upon the Supportmate calculation attached as Schedule C. Ms. Sebastiao therefore owes Mr. Di Bratto retroactive child support of the difference between the amount that she should have contributed to daycare and the amount that Mr. Di Bratto owes for base support, or $620.
(c) 2015
203Based upon my custody order, Mr. Di Bratto will have paid child support for the first three months of 2015, after which Ms. Sebastiao will pay ongoing child support.
204Assuming that Mr. Di Bratto continues to pay $502 per month, he will owe an additional $44 per month for three months or a total of $132.38
205I have found that Ms. Sebastiao’s income in 2015 onwards is $60,000 per year. This means that, assuming the daycare costs remain the same in the coming year will again total $8,343, that Ms. Sebastiao’s contribution to that daycare will be $233 per month or $744: see the Divorcemate calculation attached as Schedule D. Subtracting the amount of $132 from that amount, Ms. Sebastiao owes retroactive support for 2015 of $612.
206For ongoing child support there shall be a final order that Ms. Sebastiao pay child support in the amount of $546 per month plus $233 as her proportionate amount of Mr. Di Bratto’s daycare expenses for a total of $779 per month.
Order
207There shall therefore be a final order as follows:
Custody
a. The applicant shall have custody of the child, Pierce Sebastiao Di Bratto.
b. Day to day decisions on the health, welfare, education and religion of Pierce shall be made by the applicant;
c. The applicant shall be solely responsible for arranging for medical or dental appointments for the child and shall notify the respondent of any scheduled appointments, except in the case of emergency when the respondent shall be notified as soon as is practicable.
d. The applicant shall consult with the respondent on major decisions to be made respecting Pierce’s education, health and general welfare. Such decisions shall include schooling, day care, religion, health and elective surgery for Pierce. In the event of a disagreement on any decision to be made, the applicant shall have the right to make the final decision on the issue;
e. Neither party shall deprecate the other or permit others to deprecate the other in the presence of Pierce;
f. The parties shall communicate through the “Our Family Wizard” program. Each party shall be responsible for their cost of enrollment in the program;
g. The respondent may obtain medical, education or other information about Pierce directly from the child’s physician, day care provider, school or other service provider;
h. The applicant may obtain a passport for the child without the involvement or signature of the respondent.
i. Original documentation respecting Pierce, including his passport, birth certificate, Social Insurance Card and OHIP Card, shall be in the possession of the applicant with copies of that documentation to be provided to the respondent.
j. Either party may travel out of the province with the child for brief holidays not exceeding two weeks in duration. If a party wishes to travel outside of the country, he or she shall provide a detailed itinerary of the proposed travel plan, and upon receipt of the itinerary the other party shall execute all necessary travel consents. The travel consents shall be prepared at the expense of the party seeking to travel with the child. If the respondent intends upon travelling with the child, the applicant shall provide the child’s passport to the respondent, and the passport shall be forthwith returned when the child returns.
k. Neither party shall attend at the day care center or school other than for the purpose of picking up or dropping off Pierce, for parents’ activities scheduled by the school or day care (family barbecues, etc.) or for scheduled parent teacher interviews.
l. If either party wishes to move his or her permanent address, he or she shall give 60 days’ notice to the other party.
Time Sharing
m. Pierce shall reside with the respondent as follows:
i. Three weekends out of four, from Friday evening at 3:30 p.m. to Sunday evening at 7:00 p.m., to be extended to Monday at 7:00 p.m. with pickup to take place at the day care center and drop-off at the applicant’s residence;
ii. Every Wednesday night from 3:30 p.m. to Thursday at 7:30 a.m. with pickup and drop-off to take place at the day care center;
n. Pierce shall reside with the applicant at all other times.
o. The parties shall share holidays and special occasions as follows:
i. For the period between December 24 to 26 in each year, Pierce shall spend from noon on December 24 to noon on December 25 with one parent, and noon on December 25 to noon on December 26 with the other. During odd numbered years, the applicant shall have first choice of which period to spend with Pierce and in even numbered years the respondent shall have first choice.
ii. Excluding the period of time from December 25 to 26 each year, Pierce shall spend one half of the Christmas school holidays with each party, with the party having Pierce between December 24 to 25 having the first week of the Christmas break from the close of school or day care, and the party with Pierce between December 25 and 26 having Pierce during the second week of the Christmas break to his return to school or day care.
iii. For Thanksgiving weekend, in even numbered years the applicant to have Pierce from Friday at 3:30 or when school ends to Sunday morning at 10:00 a.m. and the respondent to have Sunday morning at 10:00 a.m. to Tuesday morning when Pierce shall be returned to the day care at 7:30 a.m. or when school commences, with this schedule reversing in odd numbered years.
iv. For the Easter weekend, Pierce to reside in alternate years with one parent from Thursday after school or day care until Saturday evening at 7:30 p.m. and with the other from Saturday evening at 7:30 p.m. until Tuesday morning at 7:30 a.m. or the commencement of school. The applicant to have Pierce the Thursday to Saturday period and the respondent to have Saturday to Tuesday period in odd numbered years, with the time sharing for those days reversing in even numbered years.
v. The applicant to have Pierce all day on Father’s Day and the respondent to have Pierce all day on Mother’s Day, irrespective of the access schedule.
vi. March break to be divided between the parties, with the applicant having first choice of the first or second half of March break in even numbered years, and the respondent having first choice in odd numbered years.
vii. During summer school holidays, the normal schedule shall continue, provided that once Pierce turns six, the parties shall share time with Pierce on a week about basis;
viii. Each party shall be entitled to two non-consecutive weeks for holidays until Pierce turns five years of age, when each party may have Pierce for two consecutive weeks of holidays. If a party intends upon taking a holiday, he or she shall give at least 60 days’ notice of his or her intention to take a holiday. During these weeks of holidays, the regular time sharing schedule shall be suspended other than the period of time surrounding Christmas Day.
ix. These holidays may be taken at any time during the year until school begins, after which the holiday weeks shall be taken only during the scheduled Christmas or summer school holidays.
Child Support
p. The respondent shall pay the applicant retroactive child support of $1,232.
q. Based upon income imputed to the respondent in the amount of $60,000, the respondent shall pay to the applicant base child support in the amount of $546 per month commencing April 1, 2015.
r. The respondent shall pay $233 per month as her proportionate share of the day care costs of Pierce commencing April 1, 2015, based upon the following:
i. The day care costs of the child are $8,343 per annum and are deducted for tax purposes by the applicant;
ii. The applicant has been found to have income of $60,000 per annum, and the respondent is imputed with income of $60,000 per annum;
iii. The parties accordingly equally share the after tax costs of daycare.
s. Support deduction order to issue.
t. There shall be annual financial disclosure by both parties of their income tax returns, notices of assessment and all other disclosure as required by s. 21 of the Child Support Guidelines commencing in May, 2016 and on an annual basis thereafter.
Costs
208The respondent still owes $331 under the costs award made by Kaufman J. on June 5, 2013. She also owes costs of $750 under Nelson J.’s order of October 16, 2013 and costs of $2,000 under Kaufman J.’s order of July 23, 2014. Assuming that no payments have been made on account of costs, the respondent therefore owes a total of $3,081 in pre-trial costs. There is as well a further award of costs against the respondent of $1,500 ordered by Rogers J. on November 17, 2014 if the applicant has at least 50% success at trial, which I suspect he has achieved.
209The parties may make written costs submissions on both the Rogers J. order and the costs of trial. The applicant and then the respondent shall serve and file written submissions regarding costs on a 10 day turnaround. Costs submissions to be no more than five pages in length not including Bills of Costs and any Offers to Settle made prior to trial.
McDERMOT J.
Released: April 7, 2015
- Correction to the dates in paragraph 207 (o)(i) to now read “noon on December 25 to noon on December 26 with the other…”.
Footnotes
- By correspondence of May 17, 2013, the Office of the Children's Lawyer declined involvement in this matter.
- R.S.O. 1990, c. C.12
- At the date of argument of this motion, there was no order for interim child support or, for that matter, interim custody or care and control of the child. The endorsement makes it apparent that Kaufman J. had been made aware that child support was being paid by the father directly, and this provision of the order appears to address the delay that would result from a support deduction order and the hardship to the respondent in light of her unemployment. This was not done, and the applicant has continued to pay support based upon an income amount which he calculated based upon his own disallowance of a number of his expenses charged against his gross income for tax purposes.
- As noted above, and as will be discussed below, that baptism has never taken place notwithstanding Kaufman J.’s interim order.
- I note that the respondent had filed a financial statement sworn on October 20, 2014, prior to the Trial Management Conference which was held on October 24, 2014. There was no supporting material attached to that financial statement. It was not mentioned in the initial submissions regarding the breach of the McGee J. order by Ms. Medeiros. The financial statement was only brought to my attention and made an exhibit when Ms. Medeiros cross examined Ms. Sebastiao on it on November 27, 2014.
- In fact, Mr. Di Bratto did not actually testify as to when the parties moved in together; his date of cohabitation came from his counsel’s opening submissions. However, Mr. Di Bratto said in cross-examination that he moved in with Ms. Sebastiao when she was pregnant with Pierce and that prior to him moving into her home, he paid for groceries and did work around the home.
- Ms. Sebastiao refused to answer what amount was actually refunded to her. She said she was justified in keeping the refund because Mr. Di Bratto had lived in her home rent free and without paying expenses for a substantial period of time.
- I note that an access parent has a right to information under s. 20(5) of the CLRA which does not appear to have been recognized by the respondent.
- This was addressed by paragraph 3 of the temporary order of Kaufman J. dated June 5, 2013 which provided that Mr. Di Bratto would be an emergency contact for the day care secondarily to Ms. Sebastiao.
- The order of Nelson J. dated April 11, 2013 indicated in paragraph 2 that if either party wished to “cancel or change a visit, they shall advise the other at least 48 hours before the scheduled visit and alternate access shall be arranged.” Ms. Sebastiao made it apparent during her cross-examination of Mr. Di Bratto that she interpreted this order to mean that the visit could be cancelled even if the alternate access was not agreed upon prior to the cancellation. The police apparently agreed with this interpretation, although it would seem to be contrary to the intent of the provision to permit cancellation of a visit without a prior agreement as to makeup access. Kaufman J. apparently agreed with the latter viewpoint as he ordered on June 5, 2013, after argument, that all changes in the schedule had to be agreed to in writing: see paragraph 10 of that order.
- This appears to be in addition to the Christmas access ordered by Nelson J. at a motion heard on October 16, 2013.
- The same response was sent to Mr. Di Bratto’s counsel, who also made a request for access on December 23, 2013: see Schedule B to Ex. 20.
- See paragraph 2(4) of the Order of Kaufman J. dated July 23, 2014.
- This does not appear to be the case. Mr. Di Bratto is entitled to access on Mondays from 3:30 to 7:30 p.m. and there is no exception for long weekends.
- Howard Hurwitz suggested that there might be a concern that Ms. Sebastiao suffers from Munchausan’s Syndrome by Proxy; he admitted, however, that he was not qualified to diagnose mental health issues.
- O. Reg. 114/99
- O. Reg, 391/97
- I note that Mr. Di Bratto was not the only party who did this. Ms. Sebastiao acknowledged that, after access visits, she would attend at the daycare center to “comfort” Pierce after access visits. It is a wonder that the daycare center did not take steps to limit both parents’ access to their son at daycare because of the disruption to the program and to the children. The day care center did complain of the parental conflict that occurred during access exchanges.
- Neither party raised issues of serious past conduct or domestic violence. Subsections 24(3) and (4) are inapplicable to this case.
- R.S.C. 1985, c. 3 (2nd Supp.)
- Izyuk v. Bilousov, supra at para. 507
- Sader v. Kekki, infra at para. 133
- See Izyuk v. Bilousov, supra, where Pazaratz J. ordered sole custody to the father, while the child remained in the care of the mother. The decision further provided for a gradual transition to a shared custody arrangement.
- Assessment report of Mr. Hurwitz, op cit. at p. 43
- Ibid. p. 46.
- Ibid. at pp. 36-37
- Ibid. at pp. 38-39
- Ibid., p. 43
- Assessment Report of Howard Hurwitz at p. 45
- Mr. Di Bratto said that his business was word of mouth. There was no evidence of Yellow Pages or other advertising costs.
- The total to be added back would be one half of the cell phone bill which is $458 plus advertising and entertainment costs of $4,523. If those figures are added to the net business income that Mr. Di Bratto inserted into his income tax return of $19,335, the total income would be $24,316. If a gross up for taxes is allowed on the improper deductions, at that tax rate, the amount is closer to $25,000 per annum.
- See the Service Canada account statement attached as Schedule “C” to the respondent’s affidavit filed as Ex. 37 in this proceeding.
- Assessment of Mr. Hurwitz at p. 43
- Ms. Sebastiao’s Line 150 income in 2013 was, in fact, $47,782. However, under Schedule III, s. 3(b) of the Child Support Guidelines, the Universal Child Care Benefit is deducted from income for support purposes, leaving Ms. Sebastiao with income for child support of $46,582.
- Nine months @ $8 per month.
- $1,697 + $72
- $7,000 in 2014
- The difference between what Mr. Di Bratto paid ($502 per month) and what he should have paid ($546 per month) is $44 per month.
